Law Commons^™

Hands Off “My” Colors, Patterns, And Shapes! How Non-Traditional Trademarks Promote Standardization And May Negatively Impact Creativity And Innovation, Irene Calboli

Faculty Scholarship

This chapter criticizes the protection of non-traditional trademarks (NTTMs) by focusing on three specific examples from the fashion industry: Louboutin, Gucci, and Bottega Veneta. In particular, besides repeating that granting exclusive rights to NTTMs equates in foreclosing competitors and third parties from using any identical and similar product design and products feature, this chapter highlights an additional problem related to the protection of NTTMs. Notably, that, by recognizing and protecting as marks elements that are product design and aesthetic product features, protecting these marks supports a system of intellectual property protection that promotes standardization, rather than creativity and innovation, in …

Non-Traditional Trademarks: The Error Costs Of Making An Exception The Rule, Glynn Lunney

Faculty Scholarship

Over the last sixty years, courts and the USPTO have engaged in an ill-advised expansion of trademark subject matter. Where once only words or emblems attached to a product could serve as a trademark, today a product’s design or packaging itself may receive such protection. This expansion was and is a mistake. There may indeed be rare cases where a product’s design or packaging conveys brand-specific information and could receive protection without impairing competitor’s ability to offer substitutes. Such cases are the exception and not the rule, however. Extending the strong legal presumptions and property-like protection trademark law provides to …

Introduction To The Protection Of Non-Traditional Trademarks: Critical Perspectives, Irene Calboli

Faculty Scholarship

During the past decades, the domain of trademark law and the scope of trademark protection have been expanded significantly. The flexible application of prerequisites for registration has paved the way for the recognition of a wide variety of signs as subject matter eligible for trademark protection. This includes single colors, shapes, sounds, smells, video clips, holograms, and even gestures. However, this expansion of the scope of trademark protection has been accompanied only by a partial expansion of the grounds for refusal relating to these registrations and the creation of defenses that permit unauthorized use in the interest of freedom of …

Two-Tiered Trademarks, Glynn Lunney

Faculty Scholarship

Today, we have a two-tiered trademark system. In the top tier, both parties can afford to litigate. In the lower tier, only one party can. This two-tiered system has arisen over the last century because courts refused to follow the law. Faced with trademark law that led to seemingly unjust outcomes in the case before them, courts rewrote trademark law. When those initial rewrites led to different sorts of seeming injustice as cases continued to arise, courts rewrote trademark law again and again. Moreover, judges rewrote trademark law not as part of any systemic and coherent plan for trademark law, …

Bounded Rationality, Paternalism, And Trademark Law, Stacey Dogan

Faculty Scholarship

We don’t need behavioral economics to understand that trade marks can shape consumer preferences in ways that have little to do with objectively measurable differences in product quality. Scholars, judges, economists, and policymakers have long recognized the tendency of strong marks to skew consumer decisions. The concern lies not only in price effects but with the allocative effects of encouraging investment in persuasive advertising, rather than product innovation or similar “productive” pursuits. While informative advertising can benefit consumers, advertising that creates artificial brand-based differences between otherwise identical products appears not only costly to consumers but also socially wasteful.

This Essay …

Kob-Tv Interviews Kastenberg On The Stolen Valor Act, Joshua E. Kastenberg

Faculty Scholarship

Professor Kastenberg discusses the likehood of a local teenager being tried for murder as an adult.

Diverse Originalism, Christina Mulligan

Faculty Scholarship

No abstract provided.

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Comment On 'Error And Regulatory Risk In Financial Institution Regulation', Keith N. Hylton

Faculty Scholarship

I agree with just about everything Jonathan Macey (2017) says in his symposium contribution. His claim that bureaucratic tendencies toward regularity—specifically, treating like cases alike—generate errors in categorization seems appropriate to me. His explanations of the pathologies in financial regulation should fall in the category of essential or required reading for anyone who chooses to write on the topic. Where I differ from Macey is in the choice of framework, or perspective from which to view the pathologies. Whereas Macey adopts an “error cost” framework, which is clearly appropriate for this symposium, I would build explicitly on a “public choice” …

The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …

Then And Now: Mark Pettit’S Modern Unilateral Contracts In The 1980s And In The Age Of Blockchains, Daniela Caruso

Faculty Scholarship

Having read Jack Beermann and Fran Miller’s moving and insightful essays, I find myself unable to express in further words how wonderful Mark was and how much I miss him. I ask therefore that Jack and Fran allow me to join their celebration of Mark’s inimitable brilliance and generosity. What I offer today is a particular word of praise for an article by Mark which is not only my favorite, but also an extremely well regarded contribution to contract law scholarship: Modern Unilateral Contracts. 1 In this oft-cited and oft-quoted piece,2 published in this Law Review in 1983, Mark took …

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Faculty Scholarship

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote lowcarbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …

The War(S) On Christmas In The Law Books, Kurt Metzmeier

Faculty Scholarship

This piece takes a reference to a December 25, 1823, session of the Kentucky Senate as a starting point to discuss the legal history of Christmas in America and specifically Kentucky from the Puritan era when it was banned, to the early 1800s when it was officially ignored, to the late 19th century when it was raised to a legal holiday (and when many of the day's tradition were created).

Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison

Faculty Scholarship

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.

This article shifts the focus. Instead, it argues that …

Tribute To Professor Mark J. Pettit, Jr., Jack M. Beermann

Faculty Scholarship

When the BU School of Law community lost Professor Mark Pettit, Jr. last summer, we lost a great teacher, perhaps the best law teacher in the United States. His classes sang even when he was not singing. I have an overwhelming feeling of gratitude at having been Mark’s friend and colleague for the past thirty-four years. When my friends at the Mandel Legal Aid Clinic at the University of Chicago Law School learned I would be teaching at BU Law, they urged me to seek Mark out. Mark taught there as a clinical instructor before he came to BU, and …

Karaoke Car Talk With Mark Pettit, Frances H. Miller

Faculty Scholarship

Mark Pettit and I played our own version of Carpool Karaoke long before it became a media favorite. Mark was the quiet one, a prisoner in my car for more than forty years of driving back and forth to the Law School on the Mass Pike. We were cooped up alone together for an hour and a half almost every day, sometimes under trying circumstances, including monumental traffic jams and weather horrendiomas. Some days we had more direct conversation with one another than either one of us had with our own spouses. So I thought I’d give you a little …

Sorting Out White-Collar Crime, Miriam Baer

Faculty Scholarship

No abstract provided.

Assessing The Impact Of The Global Compacts On Refugees And Migration In The Middle East, Susan M. Akram

Faculty Scholarship

Today, the overwhelming burden of the global refugee and migrant crisis is borne by the Middle East region, driven by protracted armed conflict and exacerbated by a deficit of applicable international legal norms. Most States in the Middle East have not adopted the international treaties that provide protection guarantees for refugees and stateless persons, the 1951 Refugee Convention and its 1967 Protocol, the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness. The lack of legal status for persons displaced by conflict, many of whom are stateless refugees, leaves them in situations …

Constructing The First Year Experience: Improving Retention And Graduation Rates At A Hispanic-Serving Institution, Sonia M. Gipson Rankin, Tim Schroeder, Joe Suilmann, Pamela Cheek

Faculty Scholarship

In 2012, UNM teamed up with the Gardner Institute for Excellence in Undergraduate Education, to conduct a Foundations of Excellence® (FoE) First College Year Self Study addressing student success. As members of the First Year Steering Committee, we invented, coordinated, measured, and documented programs for linking students to the academic experiences and support that were best attuned to their needs.

The Costs Of Trademarking Dolls, Jessica Silbey

Faculty Scholarship

Professor Curtin’s article, Zombie Cinderella and the Undead Public Domain, takes a recent case from the Trademark Trial and Appeal Board (TTAB) as the basis for an argument that trademark doctrine needs stronger protection against the exclusive commercial appropriation of characters that are in the public domain. In that case, a doll manufacturer sought to register the term “Zombie Cinderella” for a doll that was zombie-ish and princess-like. The examiner refused registration because the term “Zombie Cinderella” for this kind of doll was confusingly similar to the mark for Walt Disney’s Cinderella doll. Although the TTAB overturned the examiner’s …

A Conversation With Professor William W. (Rusty) Park, William W. Park

Faculty Scholarship

ABBY COHEN SMUTNY*: The ITA’s Academic Council has an interesting and very useful project, which is called Preserving Perspectives. It is a project to interview leading arbitrators regarding the development and evolution of international arbitration. This has led to a series of wonderful videos that are posted on ITA’s website. These videos are a tremendously rich resource and I encourage you to check them out on ITA’s website.

I’m now delighted to introduce to you the next interview in this important series. Professor and member of our academic council Catherine Rogers will be interviewing Professor Rusty Park, and …

Bureaucratic Resistance And The National Security State, Rebecca Ingber

Faculty Scholarship

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. …

The Rhetoric Of Bigotry And Conscience In Battles Over "Religious Liberty V. Lgbt Rights", Linda C. Mcclain

Faculty Scholarship

Charges, denials, and countercharges of “bigotry” are a familiar feature in debates over the evident conflict between LGBT rights and religious liberty. A frequent claim is that religious individuals who reject the extension of civil marriage to same-sex couples and seek conscience-based exemptions from state public accommodations law that protect against discrimination on the basis of sexual orientation are being “branded” as bigots. The rhetoric of bigotry raises a number of puzzles. Is sincerity or the appeal to conscience a defense to charge of bigotry? Is a charge of bigotry inferred simply from asserting that society should learn lessons from …

The Business Of Ai Startups, James Bessen, Stephen Michael Impink, Robert Seamans, Lydia Reichensperger

Faculty Scholarship

New machine learning techniques have led to an acceleration of “artificial intelligence” (AI). Numerous papers have projected substantial job losses based on assessments of technical feasibility. But what is the actual impact? This paper reports on a survey of commercial AI startups, documenting rich detail about their businesses and their impacts on their customers. These firms report benefits of AI that are more often about enhancing human capabilities than replacing them. Their applications more often increase professional, managerial, and marketing jobs and decrease manual, clerical, and frontline service jobs. These startups sell to firms of different sizes, in different industries …

Regulation A+: New And Improved After The Jobs Act Or A Failed Revival?, Neal Newman

Faculty Scholarship

This piece is a follow-up to a previous article that I wrote on Regulation A. In April of 2012, then President Barack Obama signed into law the Jumpstart our Business Start Ups (JOBS) Act. Under the JOBS Act’s Title IV, Congress made revisions to a private offering exemption referred to as Regulation A with the intention of reviving an exempt offering option that was close to dormant. The primary Regulation A criticism being that issuers were required to do too much in terms of providing business and financial disclosure where the most the issuer could raise though a Regulation A …

Hearsay In New Mexico, Verónica C. Gonzales-Zamora, Linda Vanzi, Chief Judge

Faculty Scholarship

Introduction to the New Mexico rule against hearsay, Rule 11-803 NMRA.

The Demise Of Drug Design Litigation Death By Federal Preemption, Aaron Twerski

Faculty Scholarship

No abstract provided.

Firm Value And Intracorporate Arbitration, Andrew K. Jennings

Faculty Scholarship

No abstract provided.

Avatars, Acting, And Imagination: Bringing New Techniques Into The Legal Classroom, Joy Kanwar

Faculty Scholarship

No abstract provided.

Infrastructural Exclusion And The Fight For The City: Power, Democracy, And The Case Of America's Water Crisis, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.