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Articles 31 - 60 of 130
Full-Text Articles in Law
Reconciling Fair Use And Trademark Use, Margreth Barrett
Reconciling Fair Use And Trademark Use, Margreth Barrett
Margreth Barrett
This article looks to early common law, the legislative history of the Lanham Act, and public policy considerations to evaluate the relationship of the Lanham Act’s trademark use requirement to the trademark fair use defense. Although a number of commentators have suggested the contrary, I conclude that requiring infringement plaintiffs to demonstrate the defendant’s “trademark use” as part of its case-in-chief is consistent with the fair use defense, which waives liability if the defendant can demonstrate that its use was “in good faith” and “otherwise than as a trademark” only to describe its goods or services. These two “use” doctrines …
Memorial To Barbara Ringer, Peter Jaszi
Memorial To Barbara Ringer, Peter Jaszi
Articles in Law Reviews & Other Academic Journals
The story goes that in 439 BC the retired consul Cincinnatus was summoned from the plow by the Senate and people of Rome. One more time, he saw the Republic through a time of particular peril, resigning office immediately afterwards to return to his rural retirement - to be transmuted into a timeless emblem of selfless probity. Episodes of this kind are even rarer in the annals of the U.S. civil service than in the Roman history. But I had the good fortune to be a witness to one such - Barbara Ringer's return to the Library of Congress in …
Trademarks And Human Rights: Oil And Water? Or Chocolate And Peanut Butter?, Megan M. Carpenter
Trademarks And Human Rights: Oil And Water? Or Chocolate And Peanut Butter?, Megan M. Carpenter
Law Faculty Scholarship
In recent years, there has been a growing discourse at the intersection of intellectual property and human rights, including whether or not individual intellectual property rights are, or can be, human rights. In 2007, this debate began to focus on the area of trademarks. That year, the European Court of Human Rights determined that it had jurisdiction over a trademark dispute, by virtue of the property rights provision found in Article 1 of Protocol 1 to the European Convention on Human Rights. This paper seeks to explore the connection between trademarks and human rights. The first part of the article …
The God Paradox, Joshua A.T. Fairfield
Nonrivalry And Price Discrimination In Copyright Economics, John P. Conley, Christopher S. Yoo
Nonrivalry And Price Discrimination In Copyright Economics, John P. Conley, Christopher S. Yoo
All Faculty Scholarship
The literature on the economics of copyright proceeds from the premise that copyrightable works constitute pure public goods, which is generally modeled by assuming that such works are nonexcludable and that the marginal cost of making additional copies is essentially zero. A close examination of the foundational literature on public goods theory reveals that the defining characteristic of public goods is instead the optimality criterion known as the “Samuelson condition,” which implies that the systematic bias toward underproduction is the result of the inability to induce consumers to reveal their preferences rather than the inability to exclude or price at …
Custom, Comedy, And The Value Of Dissent, Jennifer E. Rothman
Custom, Comedy, And The Value Of Dissent, Jennifer E. Rothman
All Faculty Scholarship
In this essay, I comment on Dotan Oliar and Christopher Sprigman's article, There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008). Their study of the quasi-intellectual property norms in the stand-up comedy world provides yet another compelling example of the phenomenon that I have explored in which the governing intellectual property regime takes a backseat to social norms and other industry customs that dominate the lived experiences of many in creative fields. The microcosm of stand-up comedy reinforces my concern that customs are being used to …
The Inevitable Disclosure Doctrine: A Common-Sense Application That Considers The Rights Of Trade Secret Holders And Employees, Eduardo M. Gonzalez
The Inevitable Disclosure Doctrine: A Common-Sense Application That Considers The Rights Of Trade Secret Holders And Employees, Eduardo M. Gonzalez
Eduardo M Gonzalez
Under the inevitable disclosure doctrine, a court may enjoin a person accepting employment with a direct competitor of a former employer to protect a trade secret. Most states that have adopted the doctrine do not limit its application. Such broad application of the doctrine can be harsh and unfair if the former employee lacked any intent to disclose a trade secret. Moreover, it encourages frivolous lawsuits by employers and discourages bargained-for non-compete agreements. Some states, notably California, citing these policy concerns, have declined to adopt the doctrine. This extreme approach is equally troublesome because it ignores that the protection of …
Hidden Engines Of Destruction, Andrea Matwyshyn
Hidden Engines Of Destruction, Andrea Matwyshyn
Andrea Matwyshyn
This article explores whether a duty to warn should exist in the context of digital products. It argues in favor of creating a “reasonable expectation of code safety.” Section I explains the dominant ways that digital products can harm consumers through their code and not their content, focusing on functionality and information security harms. Section II reviews existing regulation of digital products and highlighted their focus on improving information parity and consumer control over digital product relationships. Section II then sets forth the scope of the duty to warn and protect from harms in real space owed by possessors of …
Distinguishing The Right Of Publicity: Property Rights, Free Speech Privilege, And Competition Policy, Steven Semeraro
Distinguishing The Right Of Publicity: Property Rights, Free Speech Privilege, And Competition Policy, Steven Semeraro
Steven Semeraro
The right of publicity is an enigmatic property right. Its many critics argue that it should not be a property right at all, because 1) it is unnecessary to stimulate the pursuit of fame; 2) unneeded to manage the value of publicity; and 3) undeserved in any recognized moral sense. Yet, this ostensibly persuasive critique has had little practical impact. The right of publicity today is stronger than ever. This article contends that the prevailing critique of publicity rights has failed to influence the courts in large part because each quiver in its arsenal would be just as fatal were …
Allocating Patent Rights Between Earlier And Later Inventions, Charles Adams
Allocating Patent Rights Between Earlier And Later Inventions, Charles Adams
Charles W. Adams
Allocating Patent Rights Between Earlier and Later Inventions By Charles W. Adams Abstract The patent statutes expressly authorize patents for improvements to earlier inventions, but they do not address the allocation of rights between the patents for the original inventions and the after-arising technology. From an economic standpoint, the allocation of patent rights should depend on the relative contribution of the original inventor and the improver and on the effect that the allocation would have on their respective incentives. Improvements on earlier inventions may give rise to blocking patents in which the permission of both the original inventor and the …
Interoperability: Intellectual Property Vs. Anti-Trust, Kevin W. Reckamp
Interoperability: Intellectual Property Vs. Anti-Trust, Kevin W. Reckamp
Kevin W Reckamp
In the past few years, the European Union and the United States have taken differing paths in the name of consumer welfare. The European courts recently struck Microsoft with the largest fine ever for violating the EU competition laws, because Microsoft had refused to release proprietary codes to rival companies that would allow the rivals to make their products “interoperable” with Microsoft’s dominate system. The Microsoft decision is the latest in a line of cases that goes down a path of stripping intellectual property rights from an individual or company that becomes too successful. The United States has been much …
Preserving And Ensuring Long-Term Access To Digitally Born Legal Information, Sarah Rhodes, Dana Neacsu
Preserving And Ensuring Long-Term Access To Digitally Born Legal Information, Sarah Rhodes, Dana Neacsu
Law Faculty Publications
Written laws, records and legal materials form the very foundation of a democratic society. Lawmakers, legal scholars and everyday citizens alike need, and are entitled, to access the current and historic materials that comprise, explain, define, critique and contextualize their laws and legal institutions. The preservation of legal information in all formats is imperative. Thus far, the twenty-first century has witnessed unprecedented mass-scale acceptance and adoption of digital culture, which has resulted in an explosion in digital information. However, digitally born materials, especially those that are published directly and independently to the Web, are presently at an extremely high risk …
Property And Relative Status, Nestor M. Davidson
Property And Relative Status, Nestor M. Davidson
Michigan Law Review
Property does many things-it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies. This status-signalingf unction of property-withp roperty serving as an important locus for symbolic meaning through which people compare themselves to others-complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading …
Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases, Tonja Jacobi, Matthew Sag
Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases, Tonja Jacobi, Matthew Sag
Tonja Jacobi
Empirical legal studies have become increasingly popular and influential, but empirical analysis is only as good as its tools. Until recently, no sophisticated measure of case outcomes existed. Jacobi (2009) developed three possible measures of case outcomes, based on three common theories of how Justices balance the trade-off between outcome optimization and coalition maximization. This Article extends Jacobi’s earlier theoretical work by empirically testing those competing measures of case outcomes.
The competing measures are initially assessed against a dataset of over 8000 Supreme Court cases decided between 1953 and 2006. The measures are also assessed in a more targeted fashion …
Book Review Of "Intellectual Proptery Rights In Eu Law: Free Movement And Competition Law, Mark Perry
Book Review Of "Intellectual Proptery Rights In Eu Law: Free Movement And Competition Law, Mark Perry
Mark Perry
No abstract provided.
Dubai's New Intellectual Property-Based Economy: Prospects For Development Without Dependency, Amir Khoury
Dubai's New Intellectual Property-Based Economy: Prospects For Development Without Dependency, Amir Khoury
Amir Khoury
The Emirate of Dubai has, as a result of deliberate policy actions, been able to reinvigorate, indeed to reinvent, its Intellectual Property Potential. That is to say Dubai has boosted its ability to be the originator (and creator) of intellectual property subject-matter, rather than merely a consumer thereof. Dubai has achieved the two conditions through which an intellectual property régime becomes a valuable national asset for a country with an initially low Intellectual Property Potential; namely a structured regulatory framework coupled with effective infrastructure-related action. Dubai's undertakings in the intellectual property sphere go to show that even a country that …
Debate On In Re Bilski, Lauren Katzenellenbogen, Bob Irvine, David Donoghue
Debate On In Re Bilski, Lauren Katzenellenbogen, Bob Irvine, David Donoghue
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Nobody Reads Your Privacy Policy Or Online Contract? Lessons Learned And Questions Raised By The Ftc's Action Against Sears, Susan E. Gindin
Nobody Reads Your Privacy Policy Or Online Contract? Lessons Learned And Questions Raised By The Ftc's Action Against Sears, Susan E. Gindin
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Using Ethnographic Methods To Articulate Community-Based Conceptions Of Cultural Heritage Management, Julie Hollowell, George Nicholas
Using Ethnographic Methods To Articulate Community-Based Conceptions Of Cultural Heritage Management, Julie Hollowell, George Nicholas
Aboriginal Policy Research Consortium International (APRCi)
How can ethnographic methods help communities articulate and enact their own conceptions of heritage management? This and related questions are being explored through an international research project, ‘Intellectual Property Issues in Cultural Heritage’. The project includes up to twenty community- based initiatives that incorporate community-based participatory research and ethnographic methods to explore emerging intellectual property-related issues in archaeological contexts; the means by which they are being addressed or resolved; and the broader implications of these issues and concerns. We discuss three examples that use ethnography to (a) articulate local or customary laws and principles of archaeological heritage management among a …
Ideology And Exceptionalism In Intellectual Property: An Empirical Study, Matthew Sag, Tonja Jacobi, Maxim Sytch
Ideology And Exceptionalism In Intellectual Property: An Empirical Study, Matthew Sag, Tonja Jacobi, Maxim Sytch
Faculty Articles
In this Article, we examine the effect of judicial ideology on IP case outcomes before the Supreme Court from 1954 to 2006. We find that ideology is a significant determinant of IP cases: the more conservative a justice is, the more likely he or she is to vote in favor of recognizing and enforcing rights to intellectual property. We also find evidence that the relationship is more complex than a purely ideological account would suggest; our results suggest that law matters too. We find that a number of factors that are specific to IP are also consequential. Additionally, we show …
Things Are Worse Than We Think: Trademark Defenses In A 'Formalist' Age, Michael Grynberg
Things Are Worse Than We Think: Trademark Defenses In A 'Formalist' Age, Michael Grynberg
College of Law Faculty
Numerous articles decry the reach of modern trademark law. This article assumes the premise that these critiques are valid and asks what courts can do in response. The answer may be, not much. The “common law” practices that extended trademark’s scope are not up to the task of creating adequate countervailing defenses. Congress acquiesced to the judicial expansion of trademark liability by amending the Lanham Act with conforming language. That pattern is unlikely to be repeated for trademark defenses. The Supreme Court’s recent trademark precedents resist assertions of trademark rights beyond the express confines of the Lanham Act. If these …
Convergence And Incongruence: Trademark Law And Icann's Introduction Of New Generic Top-Level Domains, Christine Haight Farley
Convergence And Incongruence: Trademark Law And Icann's Introduction Of New Generic Top-Level Domains, Christine Haight Farley
Articles in Law Reviews & Other Academic Journals
This paper demonstrates how problematic convergences between Internet technology, the demands of a burgeoning e-market and trademark laws have created myriad issues in international governance of domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs internet's infrastructure, recently approved a new policy that would allow it to accept applications for additional generic top-level domains (gTLDs). What ICANN contemplates is a uniform system to approve generic top level domains that is expected to have profound implications. Under this new plan anyone can apply for a new gTLD at any time and it could be literally …
Is There Such A Thing As Postmodern Copyright?, Peter Jaszi
Is There Such A Thing As Postmodern Copyright?, Peter Jaszi
Articles in Law Reviews & Other Academic Journals
Back in 1992, artist/entrepreneur Jeff Koons suffered a humiliating setback when the United States Court of Appeals for the Second Circuit repudiated the suggestion that his reuse of objects from public culture might constitute a "fair use" defense to a copyright infringement claim. Fourteen years later, in a case that again involved a photographer's claim of copyright infringement, Koons triumphed in the same judicial forum. What had changed? This Article explores, in particular, one among a variety of alternative explanations: Koons may have caught the very leading edge of a profound wave of change in the social and cultural conceptualization …
Global Warming Trend? The Creeping Indulgence Of Fair Use In International Copyright Law, Richard J. Peltz-Steele
Global Warming Trend? The Creeping Indulgence Of Fair Use In International Copyright Law, Richard J. Peltz-Steele
Faculty Publications
In her article Toward an International Fair Use Doctrine in 2000, Professor Ruth Okediji hypothesized that the internationalization of copyright law would threaten the freedom of expression if some doctrine akin to U.S. “fair use” were not established as an international legal norm. Acknowledging the central concern of the Okediji article, this paper analyzes research and legal developments since that article to determine how the present state of the “fair use” concept in international copyright law differs from its state in 2000. The paper concludes that in the last eight years, though there has been no formal adoption of an …
Securitization Of Patents And Its Continued Viability In Light Of The Current Economic Conditions, Aleksandar Nikolic
Securitization Of Patents And Its Continued Viability In Light Of The Current Economic Conditions, Aleksandar Nikolic
Aleksandar Nikolic
No abstract provided.
Four Reasons To Enact A Federal Trade Secrets Act, David S. Almeling
Four Reasons To Enact A Federal Trade Secrets Act, David S. Almeling
David S. Almeling
Trade secrets stand alone as the only major type of intellectual property governed primarily by state law. Patents, trademarks, and copyrights are all governed primarily by federal statutes. Trade secrets, in contrast, are governed by fifty state statutes and common laws. The result is that trade secret law differs from state to state. Almeling argues it is time to eliminate these differences—and the significant problems they cause—by enacting a Federal Trade Secrets Act. In particular, Almeling argues that enacting a FTSA achieves four aims: (1) solving the interstate conflicts caused by having fifty different trade secret laws; (2) making the …
Navigating Cross Border Legal Risks In Intellectual Property Licensing And Technology Transfer To India, Sonia Baldia
Navigating Cross Border Legal Risks In Intellectual Property Licensing And Technology Transfer To India, Sonia Baldia
Sonia Baldia
No abstract provided.
Looking For Fair Use In The Dmca's Safety Dance, Ira Nathenson
Looking For Fair Use In The Dmca's Safety Dance, Ira Nathenson
Ira Steven Nathenson
Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ("DMCA") provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the "third wheel," the users of internet services. Even Senator John McCain - who in 1998 voted for the DMCA - wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain …
You Can't Take It With You When You Die... Or Can You?: A Comparative Study Of Post-Mortem Moral Rights Statutes From Israel, France, And The United States, Galia Aharoni
galia aharoni
Moral rights – including the rights to attribution, integrity, and dissemination – is a sticky, controversial subject even standing on its own. Questions concerning the duration of these rights seem to compound the issue even further: If moral rights protection stems from a desire to protect the author’s intrinsic relationship with the work, when should the protection stop? Upon his death? Upon the expiration of the work’s copyright? …Never? Such questions become even more pressing when a country – especially a self-acknowledged “developing” country such as Israel – enacts a moral rights law of its own, and when consequently no …
User Innovator Community Norms At The Boundary Between Academic And Industrial Research, Katherine J. Strandburg
User Innovator Community Norms At The Boundary Between Academic And Industrial Research, Katherine J. Strandburg
Katherine J. Strandburg
In this essay, I consider norms of sharing research tools and materials in what has been called Pasteur’s Quadrant, in which basic science and applied research overlap. I employ a user innovation paradigm, along with a rational choice approach to social norms, to address the issue. The convergence of academic research with commercial interests has two different types of consequences for sharing norms. First, a research tool or material developed in a nonprofit research context may be a dual-purpose innovation with both research and nonresearch uses. Thus, for example, a genetic assay may be useful in research and as a …