Law Commons^™

Obtaining Trademark Registration For Marks Containing Political Commentary: A Look Into Vidal V. Elster, Annick Runyon

University of Miami Law Review

For decades, courts have struggled with balancing trademark law with the First Amendment—specifically with cases challenging the denial of trademark registration of certain marks. Congress codified trademark registration through the Lanham Act, also known as the Trademark Act of 1946. This statute outlines the registration process and expands the rights of trademark owners. In recent years, a string of cases have ruled certain provisions of the Lanham Act that bar certain marks from registration unconstitutional.

Currently under review by the Supreme Court, the case Vidal v. Elster involves an applicant who was denied trademark registration for his mark “Trump Too …

No Flash Photography Please: An Analysis Of Corporate Use Of Street Art Under Section 120(A) Of The Awcpa, Sierra Epke

University of Miami Law Review

Street art and graffiti are pervasive artforms found throughout the world and throughout history. While the artforms have been associated with crime and vandalism in the past, they have increasingly been featured in different capacities from art galleries to corporate marketing campaigns. With street art’s growing recognition and popularity, corporations have begun to use the medium to target new customer bases. In some situations, the use of artwork in marketing campaigns is unsanctioned by the artist. Therefore, courts have now begun to examine the balance between copyright protection for street artists and the corporate use of street art. Section 120(a) …

The Freedom Of Influencing, Hannibal Travis

University of Miami Law Review

Social media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to disclose the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio …

Equitable Defenses In Patent Law, Christa J. Laser

University of Miami Law Review

In patent law, “unenforceability” can have immense consequences. At least five equitable doctrines make up the defense of “unenforceability” as it was codified into the Patent Act in 1952: laches; estoppel; unclean hands; patent misuse; and according to some, inequitable conduct. Yet in the seventy years since incorporation of equitable defenses into the patent statute, the Supreme Court has not clarified their reach. Indeed, twice in the last four years, the Supreme Court avoided giving complete guidance on the crucial questions of whether, and when, such equitable defenses are available to bar damages in cases brought at law.

Several interpretive …

The Law As Uncopyrightable: Merging Idea And Expression Within The Eleventh Circuit’S Analysis Of “Law-Like” Writing, Christina M. Frohock

University of Miami Law Review

The Eleventh Circuit recently issued an opinion in Code Revision Commission v. Public.Resource.Org, Inc. that meditates on the law as much as resolves a dispute. For that reason alone, attention should be paid. A commission acting on behalf of the Georgia General Assembly and the State of Georgia filed a copyright infringement action against a nonprofit organization that had disseminated annotated state statutes. The Eleventh Circuit took these modest facts and delivered a philosophical analysis of the nature of law, finding that statutory annotations are outside copyright protection because the true author of such “law-like” writing is “the People.” …

The Unlikely Duo That Shocked The Intellectual Property World And Why The Supreme Court Was The Chosen One To Restore Balance, Nicholas Dilts

University of Miami Law Review

The United States Congress passed the Leahy Smith America Invents Act in 2011 in an effort to streamline the patent system and reduce patent litigation, allowing the United States to continue to be competitive globally. The Act enabled the U.S. Patent Office to facilitate patent challenges through an administrative process called inter partes review, an adversarial proceeding before the newly established Patent Trial and Appeal Board that was designed to be a cheaper and more efficient alternative for post-grant patent review than litigation in front of the federal district courts. In the years that followed, the Patent Trail and Appeal …

Counter-Ip Conspiracies: Patent Alienability And The Sherman Antitrust Act, Hannibal Travis

University of Miami Law Review

Anticompetitive collusion by intellectual property owners frequently triggered antitrust enforcement during the twentieth century. An emerging area of litigation and scholarship, however, involves conspiracies by potential licensees of intellectual property to reduce or eliminate opportunities by a property’s holders to profit from it, or even to recoup their investments in creating and protecting it. The danger is that potential licensees will collude with one another to suppress royalties or sale prices. This Article traces the history of such litigation, provides an overview of the scholarly and theoretical arguments against monopsonistic or oligopsonistic collusion against licensors of intellectual property, and summarizes …

Exclusive Groove: How Modern Substantial Similarity Law Invites Attenuated Infringement Claims At The Expense Of Innovation And Sustainability In The Music Industry, Mark Kuivila

University of Miami Law Review

As of 2015, the American entertainment market was worth about $600 billion, and it is projected to substantially exceed that figure in coming years. The global entertainment industry is worth about $2 trillion, meaning the U.S. is responsible for over a quarter of total global entertainment revenue. These statistics illustrate the staggering impact of the American entertainment industry on the global markets for film, television, and music. The American music industry is particularly dominant in its global market, earning half of world-wide sync revenues and accounting for nearly a third of all global music revenue. Entertainment is clearly the United …

United States V. Martignon: The First Case To Rule That The Federal Anti-Bootlegging Statute Is Unconstitutional Copyright Legislation, Michael C. Shue

University of Miami Law Review

No abstract provided.

Patent Wars In The Valley Of The Shadow Of Death: The Pharmaceutical Industry, Ethics, And Global Trade, Uché Ewelukwa

University of Miami Law Review

No abstract provided.

Changing Invention Economics By Encouraging Corporate Inventors To Sell Patents, William A. Drennan

University of Miami Law Review

No abstract provided.

Proving Dilution, Lee Goldman

University of Miami Law Review

No abstract provided.

How Important Is A Title? An Examination Of The Private Law Created By The Motion Picture Association Of America, Edward Robert Mccarthy

University of Miami Law Review

No abstract provided.

Copyright And Internet Music Transmissions: Existing Law, Major Controversies, Possible Solutions, R. Anthony Reese

University of Miami Law Review

No abstract provided.

Eli Lilly & Co. V. American Cyanamid Co.: A "Patent Case" Of Dangerous Dicta In The Federal Circuit?, Nancy J. Flint

University of Miami Law Review

No abstract provided.

Product-By-Process Patent Claims: Majority Of The Court Of Appeals For The Federal Circuit Forgets Purpose Of The Patent Act, Mark D. Passler

University of Miami Law Review

No abstract provided.

Environmentally Dependent Inventions And The "On Sale" And "Public Use" Bars Of § 102(B): A Proffered Solution To A Statutory Dichotomy, James A. Jorgensen

University of Miami Law Review

No abstract provided.

Speaking To The Ghost: Idea And Expression In Copyright, Leslie A. Kurtz

University of Miami Law Review

No abstract provided.

The Territorial Scope Of Trademark Rights, William Jay Gross

University of Miami Law Review

No abstract provided.

Distilling The Witches' Brew Of Fair Use In Copyright Law, Jay Dratler Jr.

University of Miami Law Review

No abstract provided.

A Common Law For The Ages Of Intellectual Property, Dan Rosen

University of Miami Law Review

This Article maintains that the rapid pace of technological advances requires that courts take an activist posture in intellectual property cases by updating the Copyright Act and the Patent Law instead of awaiting congressional response.

In Search Of Adequate Protection For Choreographic Works: Legislative And Judicial Alternatives Vs. The Custom Of The Dance Community, Barbara A. Singer

University of Miami Law Review

One of the improvements in the 1976 Copyright Act was the specific recognition of choreographic works as copyrightable material. The Act's focus on the protection of economic rights, however, fails to address the primary interest of the dance community in the preservation of "moral rights" in a work. The author examines the unique concerns of choreographers, and concludes that it is customary, and not legislative or judicial, law that continues to provide the best protection of choreographers' artistic interests.

Joint Registration Of Trademarks And The Economic Value Of A Trademark System, Patricia K. Fletcher

University of Miami Law Review

No abstract provided.

Toward A Constitutional Theory Of Expression: The Copyright Clause, The First Amendment, And Protection Of Individual Creativity, Jacqueline Shapiro

University of Miami Law Review

The author presents a unique theory of personal expression under the Constitution, which posits that underlying the first amendment and the copyright clause is the principle that the public good requires encouragement, not suppression, of individual expression. Historically, decisions undermining authors' copyrights in favor of other social goals discouraged the creativity necessary for cultural development, and Congress and the courts responded by increasing the protection of authors and expanding the domain of copyrightable works. Similarly, official proscription of commercial and offensive speech for less than the most urgent social needs threatens to inhibit the creative spirit protected by the first …