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- TRIPs Agreement (6)
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Articles 1 - 19 of 19
Full-Text Articles in Law
Continuing Commercial Impression: Applications And Measurement , Gideon Mark, Jacob Jacoby
Continuing Commercial Impression: Applications And Measurement , Gideon Mark, Jacob Jacoby
Marquette Intellectual Property Law Review
This Article examines applications and measurement of continuing commercial impression, which is the meaning or idea a trademark or trade dress conveys to consumers. The doctrine is relevant in a variety of contexts, including abandonment, tacking, claim preclusion, and the Morehouse defense. A number of courts considering the issue have concluded that continuing commercial impression is a pure question of law. This article argues that such a view is incorrect, and that the doctrine should present a mixed question of law and fact. In determining whether continuing commercial impression exists, the sole factor should not be the visual or aural …
The Effects Of The Corporate Diversification Trend On Trademarks, Katherine E. Halmen
The Effects Of The Corporate Diversification Trend On Trademarks, Katherine E. Halmen
Marquette Intellectual Property Law Review
In today's business world, companies are increasingly adopting diversification strategies through which they expand into diverse and unrelated business areas. Of additional importance with regard to trademarks and the future of trademark law is the fact that the trend toward corporate diversification is growing. To address the impact of the corporate diversification trend upon trademark law, courts have utilized various methodologies. Some courts have focused primarily upon the reasonably prudent consumer and how he or she is affected by corporate diversification. With regard to the use of trademarks on a variety of products, courts have often taken into account whether …
Conditioning Functionality: Untangling The Divergent Strands Of Argument Evidenced By Recent Case Law And Commentary , Justin Pats
Conditioning Functionality: Untangling The Divergent Strands Of Argument Evidenced By Recent Case Law And Commentary , Justin Pats
Marquette Intellectual Property Law Review
The protection of trade dress has become increasingly clouded in recent years. A forcethe functionality doctrinehas been implemented to police this intersection between patent and trademark law. Unfortunately, courts have struggled to arrive at a common definition of functionality. This comment examines the functionality doctrine and proposes a four-factor decay test as a uniform approach to functionality. The test asks the following questions regarding a product feature: (1) Is it essential to the use or purpose of the article?; (2) Does it have any current market effect on the cost or quality of the article?; (3) Is there a significant …
Reverse Engineering Of Computer Programs Under The Dmca: Recognizing A "Fair Access" Defense, Donna L. Lee
Reverse Engineering Of Computer Programs Under The Dmca: Recognizing A "Fair Access" Defense, Donna L. Lee
Marquette Intellectual Property Law Review
Courts have consistently held that reverse engineering constitutes fair use under the Copyright Act. When Congress enacted the DMCA, it intended to codify the settled law. Nonetheless, the exemption Congress carved out for reverse engineering in the DMCA is too narrowly crafted to accommodate the many different purposes of reverse engineering. This Comment suggests that courts should develop a fair access defense for reverse engineering undertaken for purposes that do not satisfy the requirements of the DMCA exemption but do enable other, fair use-defensible uses of computer programs. The Comment outlines three factors to consider in applying a fair access …
All Rights Reserved? Cultural Monopoly And The Troubles With Copyright , Michael Geist
All Rights Reserved? Cultural Monopoly And The Troubles With Copyright , Michael Geist
Marquette Intellectual Property Law Review
With an increasing ease for one to download, trade and share information, there is also an increasing desire by companies, corporations and private interests to protect their works. In a time where everything can be commoditized and ideas can be bought and sold at a price, a question we must answer is - Who owns our creativity? Must all rights be reserved? This lecture explores the growth of the citizen journalist and the blossoming of independent creativity online. He also examines the concerns with copyright: how lobby groups have consistently pushed for ever stronger rules. Finally, Dr. Geist presents the …
Trips And Traditional Knowledge: Local Communities, Local Knowledge, And Global Intellectual Property Frameworks, Olufunmilayo B. Arewa
Trips And Traditional Knowledge: Local Communities, Local Knowledge, And Global Intellectual Property Frameworks, Olufunmilayo B. Arewa
Marquette Intellectual Property Law Review
Intellectual property treatment of traditional or local knowledge is a major issue of contention today, particularly since the implementation of the TRIPs Agreement, which establishes minimum levels of intellectual property protection for members of the World Trade Organization. Discourse surrounding local knowledge is highly charged with accusations of "piracy" from Western countries countered with allegations of "biopiracy" from Third World countries. Flowing beneath the surface of this dialogue are multiple levels of historical experience. Intellectual property frameworks were formed in the nineteenth century during a period when evolutionary views of the development of human societies were paramount. Local knowledge was …
Expanding The Protection Of Geographical Indications Of Origin Under Trips: "Old" Debate Or "New" Opportunity?, Irene Calboli
Expanding The Protection Of Geographical Indications Of Origin Under Trips: "Old" Debate Or "New" Opportunity?, Irene Calboli
Marquette Intellectual Property Law Review
This work briefly analyzes the issue of (geographical indications of origin) GI protection pre- and post-TRIPs and considers whether extension of the protection set forth by TRIPs is desirable for the international community. First, the work provides a brief overview of GI, the traditional rationale for their protection, and the protection granted thereof before the adoption of TRIPs. Next, the analysis turns to a description of the status of the law under TRIPs and the failed diplomatic agenda to expand the current protection. The recent developments on the debate on GI are explored, particularly for wine and spirits, with an …
The International Intellectual Property Law System: New Actors, New Institutions, New Sources, Graeme B. Dinwoodie
The International Intellectual Property Law System: New Actors, New Institutions, New Sources, Graeme B. Dinwoodie
Marquette Intellectual Property Law Review
International intellectual property norms are ow being developed by a wide range of institutions- some national, some international, and some that do not fit neatly into either category; by bodies designed to address intellectual property; by trade and other bodies; and by actors public, private, and indeterminate. This new wave of international norm creation not only augments a growing body of substantive norms but also raises difficult structural questions about the future development of the international intellectual property system.
Trips: A Link Too Far? A Proposal For Procedural Restraints On Regulatory Linkage In The Wto, Sean Pager
Trips: A Link Too Far? A Proposal For Procedural Restraints On Regulatory Linkage In The Wto, Sean Pager
Marquette Intellectual Property Law Review
In dramatically expanding the reach of international intellectual property law, the TRIPs Agreement both epitomizes a new trend toward globalized regulation and signaled a controversial shift in approach by the WTO away from its narrow focus on trade. Equally controversial was the manner in which TRIPs came about. By strategically linking intellectual property protection to substantively unrelated trade negotiations, developed countries were able to push through a much more ambitious harmonization of IP law than would otherwise have been possible. Such package dealing making offers a powerful mechanism to advance global governance. However, unrestricted use of linkage strategies risks suboptimal …
Is There An Antitrust Antidote Against Ip Overprotection Within Trips?, Marco Ricolfi
Is There An Antitrust Antidote Against Ip Overprotection Within Trips?, Marco Ricolfi
Marquette Intellectual Property Law Review
The Article explores the mini-body of antitrust provisions to be found within TRIPs. It advocates a general-principles based and systematic interpretative approach of these provisions with a view to finding in them an antidote to the ratcheting up of IP protection otherwise encouraged by TRIPs. In this framework, it is argued that member countries retain considerable flexibility to incorporate pro-competitive inputs and to give appropriate consideration to non-intellectual property interests in adopting legislation at the intersection of antitrust and IP. The Article further develops criteria to assess the TRIPs-compatibility both of antitrust intervention and of generalized, ex ante legislative measures …
Corporate Patents: Optimizing Organizational Responses To Innovation Opportunities And Invention Discoveries, Richard Gruner
Corporate Patents: Optimizing Organizational Responses To Innovation Opportunities And Invention Discoveries, Richard Gruner
Marquette Intellectual Property Law Review
This article examines the interplay between patent incentives and corporate innovation. It argues that innovation concerning today's complex technologies often requires efforts on a corporate organizational scale and that changes in patent and corporate laws are needed to fully promote effective and efficient innovation in corporate environments. The prevalence of patent ownership and exploitation by corporations reflects a fundamental but poorly appreciated truth about modern technological innovation. Patent incentives influencing individuals don't bring most new inventions to the public. Rather, in many recently developed technology areas, corporate-initiated efforts are the primary sources of publicly valuable innovation and, hence, the main …
Accepting Exceptions?: A Comparative Approach To Experimental Use In U.S. And German Patent Law, Peter Ruess
Accepting Exceptions?: A Comparative Approach To Experimental Use In U.S. And German Patent Law, Peter Ruess
Marquette Intellectual Property Law Review
Experimental use is a keystone of research and innovation for some and obstacle in using a patent for others. In a genuine international field such as patent law, monitoring recent developments is best done in a comparative way. Particularly, the decision Merck v. Integra of the US Supreme Court and the new EU law, give reason to explore this field in more detail.
Soft-Science Examiners At The Uspto: A Non-Obvious Solution To Reduce Erroneous Patent Grants, Mandy Barbara Seuffert
Soft-Science Examiners At The Uspto: A Non-Obvious Solution To Reduce Erroneous Patent Grants, Mandy Barbara Seuffert
Marquette Intellectual Property Law Review
Soft science graduates can participate in patent application review, or secondary review, at the USPTO when there exists a question as to a patent's validity or obviousness. Four reasons militate in favor of including soft science patent application reviews: (1) the PTO can increase the number of examiners at a relatively low cost; (2) more time can be devoted to each questionable patent application review; (3) soft science examiners use complimentary skills and insights that might promote fewer erroneous patent approvals; and, (4) fewer parties will be forced to litigate over patent validity. This paper examines the rising problems associated …
"Infringed" Versus "Infringing": Different Interpretations Of The Word "Work" And The Effect On The Deterrence Goal Of Copyright Law, Sarah A. Zawada
"Infringed" Versus "Infringing": Different Interpretations Of The Word "Work" And The Effect On The Deterrence Goal Of Copyright Law, Sarah A. Zawada
Marquette Intellectual Property Law Review
One of the key elements that courts use to determine an appropriate statutory damage award in a copyright infringement case is the number of infringements of a copyright. How does a court determine the number of infringements when one infringing article has been printed six times in over one hundred copies of a magazine? Before the Copyright Act of 1976 went into effect, many courts adhered to the "multiplicity doctrine" and would have awarded statutory damages in the above scenarios for each of the six times that the infringing article was printed or the infringing song was played. Post-1976, however, …
Of The Inequals Of The Uruguay Round, Srividhya Ragavan, Srividhya Ragavan
Of The Inequals Of The Uruguay Round, Srividhya Ragavan, Srividhya Ragavan
Marquette Intellectual Property Law Review
Ten years ago, the TRIPs Agreement set a distinct tone in international law by requiring Members to prioritize international trade obligations as a means to achieve national goals. Within the next five years, the AIDS crisis highlighted that compromising pressing national responsibilities-like a looming public health crisis-to fulfill international obligations may, in fact, detrimentally affect international trade. Meanwhile, access to medication continues to be an unresolved issue even as we celebrate the tenth anniversary of TRIPs and the end of the transitional period. This Article suggests that the success of TRIPs depends on its ability to address national responsibilities that …
Trips And Its Discontents, Peter K. Yu, Peter K. Yu
Trips And Its Discontents, Peter K. Yu, Peter K. Yu
Marquette Intellectual Property Law Review
This Article traces the development of the TRIPs Agreement and explores why less developed countries were dissatisfied with the international intellectual property system. It also looks at the future challenges confronting these countries and what they need to do to preserve the goals and intentions behind the TRIPs negotiations. The Article begins by describing the four different narratives used to explain the origins of the TRIPs Agreement. It contends that, while none of these narratives is complete, each of them provides valuable insight into understanding the context in which the Agreement was created. The Article then explores why less developed …