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2018

Intellectual Property Law

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Full-Text Articles in Law

Introduction To The Protection Of Non-Traditional Trademarks: Critical Perspectives, Irene Calboli Dec 2018

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 …


Non-Traditional Trademarks: The Error Costs Of Making An Exception The Rule, Glynn Lunney Dec 2018

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 …


Hands Off “My” Colors, Patterns, And Shapes! How Non-Traditional Trademarks Promote Standardization And May Negatively Impact Creativity And Innovation, Irene Calboli Dec 2018

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 …


Two-Tiered Trademarks, Glynn Lunney Dec 2018

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, …


A Grand Challenges-Based Research Agenda For Scholarly Communication And Information Science [Mit Grand Challenge Pubpub Participation Platform], Micah Altman, Chris Bourg Dec 2018

A Grand Challenges-Based Research Agenda For Scholarly Communication And Information Science [Mit Grand Challenge Pubpub Participation Platform], Micah Altman, Chris Bourg

Copyright, Fair Use, Scholarly Communication, etc.

Identifying Grand Challenges

A global and multidisciplinary community of stakeholders came together in March 2018 to identify, scope, and prioritize a common vision for specific grand research challenges related to the fields of information science and scholarly communications. The participants included domain researchers in academia, practitioners, and those who are aiming to democratize scholarship. An explicit goal of the summit was to identify research needs related to barriers in the development of scalable, interoperable, socially beneficial, and equitable systems for scholarly information; and to explore the development of non-market approaches to governing the scholarly knowledge ecosystem.

To spur discussion and …


Bounded Rationality, Paternalism, And Trademark Law, Stacey Dogan Dec 2018

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 …


Essentials Of A Publication Agreement, Stephen Wolfson, Mariann Burright Dec 2018

Essentials Of A Publication Agreement, Stephen Wolfson, Mariann Burright

Presentations

This session will focus on authors' rights and publishing contracts. When academic publishers agree to publish academic works, they require the authors to sign agreements before doing so. In the past, these “agreements” – contracts, by another name – often have contained provisions that primarily benefit the publishers, including assigning intellectual property rights in the works to the publishers and limiting authors’ abilities to use their works after transferring their rights. Faculty authors often ask librarians for their guidance on how to read and negotiate publication agreements. As such, this session will discuss common provisions found in publishing contracts to …


Neuromarks, Mark Bartholomew Dec 2018

Neuromarks, Mark Bartholomew

Journal Articles

This Article predicts trademark law’s impending neural turn. A growing legal literature debates the proper role of neuroscientific evidence. Yet outside of criminal law, analysis of neuroscientific evidence in the courtroom has been lacking. This is a mistake given that most of the applied research into brain function focuses on building better brands, not studies of criminal defendants’ grey matter. Judges have long searched for a way to measure advertising’s psychological hold over consumers. Advertisers already use brain imaging to analyze a trademark’s ability to stimulate consumer attention, emotion, and memory. In the near future, businesses will offer a neural …


Green Technology Diffusion: A Post-Mortem Analysis Of The Eco-Patent Commons, Jorge L. Contreras, Bronwyn H. Hall, Christian Helmers Dec 2018

Green Technology Diffusion: A Post-Mortem Analysis Of The Eco-Patent Commons, Jorge L. Contreras, Bronwyn H. Hall, Christian Helmers

Utah Law Faculty Scholarship

We revisit the effect of the “Eco-Patent Commons” (EcoPC) on the diffusion of patented environmentally friendly technologies following its discontinuation in 2016, using both participant survey and data analytic evidence. Established in January 2008 by several large multinational companies, the not-for-profit initiative provided royalty-free access to 248 patents covering 94 “green” inventions. Hall and Helmers (2013) suggested that the patents pledged to the commons had the potential to encourage the diffusion of valuable environmentally friendly technologies. Our updated results now show that the commons did not increase the diffusion of pledged inventions, and that the EcoPC suffered from several structural …


Juries In U.S. Patient Cases: A Comparative Portrait Of The Boundaries Of Democracy, Neil M. Browne, Nancy K. Kubasek, Alex Q. Jacobs Dec 2018

Juries In U.S. Patient Cases: A Comparative Portrait Of The Boundaries Of Democracy, Neil M. Browne, Nancy K. Kubasek, Alex Q. Jacobs

Economics Faculty Publications

No abstract provided.


Prophylactic Merger Policy, Herbert J. Hovenkamp Dec 2018

Prophylactic Merger Policy, Herbert J. Hovenkamp

All Faculty Scholarship

An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there …


Annual Report Fy 2018, Office Of Scholarly Communications, University Of Nebraska–Lincoln Libraries, Paul Royster, Sue A. Gardner, Margaret Mering, Linnea Fredrickson Dec 2018

Annual Report Fy 2018, Office Of Scholarly Communications, University Of Nebraska–Lincoln Libraries, Paul Royster, Sue A. Gardner, Margaret Mering, Linnea Fredrickson

Copyright, Fair Use, Scholarly Communication, etc.

Highlights include hosting the ACRL Scholarly Communications Roadshow, joining the National Library of Medicine’s PubMed Link-out program, the Gerald Hodges Intellectual Freedom Chapter Relations Award from the American Library Association, institutional repository deposits and traffic, journals published, Zea Books published, conferences, presentations, publications, staffing notes, and student workers.


Copyright And The Single Work, Laura A. Heymann Nov 2018

Copyright And The Single Work, Laura A. Heymann

Popular Media

No abstract provided.


What's In A Licensing Agreement?, Stephen Wolfson, Mariann Burright Nov 2018

What's In A Licensing Agreement?, Stephen Wolfson, Mariann Burright

Presentations

Now that you know the foundations of enforceable contracts, and want to have more familiarity with some nuts and bolts of contract language to become a better negotiator for your institutions, you will want to take this second webinar.
Participants will learn:
• What are the basic provisions or clauses of a contract?
• What do these provisions obligate my institution to do?
• What do these provisions obligate the other party to do?
• What rights does my institution have if the other party breaks its obligations?


Ereserves, Annotations, And Registration: Copyright At The 11th Circuit, Stephen Wolfson Nov 2018

Ereserves, Annotations, And Registration: Copyright At The 11th Circuit, Stephen Wolfson

Presentations

This presentation discusses eReserves, the 11th circuit and copyright issues surrounding the Georgia State University case heard by Judge Evans in 2008.


The Costs Of Trademarking Dolls, Jessica Silbey Nov 2018

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 …


The Scope Of Ipr Estoppel: A Statutory, Historical, And Normative Analysis, Christa J. Laser Nov 2018

The Scope Of Ipr Estoppel: A Statutory, Historical, And Normative Analysis, Christa J. Laser

Law Faculty Articles and Essays

When Congress implemented inter partes review (IPR) and other patent post-grant proceedings through the passage of the America Invents Act (AIA) in 2011, it provided that petitioners would be estopped in later proceedings from raising grounds for invalidity that they "raised or reasonably could have raised during that inter partes review." 35 U.S.C. § 315( e )(2). However, substantial uncertainty in courts' interpretation of this provision causes an enormous impact on an accused patent infringer's decision of whether and on what grounds to petition for review. One reading of the statutory estoppel provision suggests that "during that inter partes review" …


Intellectual Property In Experience, Madhavi Sunder Nov 2018

Intellectual Property In Experience, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

In today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters— they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.

Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that …


Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme Nov 2018

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, like enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.

The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods LLC illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically …


What We Don't See When We See Copyright As Property, Jessica Litman Nov 2018

What We Don't See When We See Copyright As Property, Jessica Litman

Articles

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which …


Relx Referral To Eu Competition Authority, Jonathan Tennant, Björn Brembs Nov 2018

Relx Referral To Eu Competition Authority, Jonathan Tennant, Björn Brembs

Copyright, Fair Use, Scholarly Communication, etc.

We believe that Elsevier and other major publishers are continuing to engage in anti-competitive practices, which are continuously worsening, and that information gained in the last 15 years urges immediate investigation and intervention into this unregulated market space. This could be, for example, through an empirical analysis of the scholarly publishing market; by having an independent regulatory body monitoring and overseeing the digital services provided by Elsevier and others within the industry; banning the use of non-disclosure clauses in licensing contracts; requiring transparency into the production costs of research articles and publishing operations; banning the use of inappropriate journal-level metrics …


Library Publishing Directory 2019, Library Publishing Coalition, Melanie Schlosser, Alexandra Hoff, Jessica Kirschner, Janet Swatscheno, Robert Browder, Tom Bielavitz Nov 2018

Library Publishing Directory 2019, Library Publishing Coalition, Melanie Schlosser, Alexandra Hoff, Jessica Kirschner, Janet Swatscheno, Robert Browder, Tom Bielavitz

Copyright, Fair Use, Scholarly Communication, etc.

Contents: Introduction vii * Library Publishing Coalition Committees xi *

LIBRARIES IN THE UNITED STATES AND CANADA * Abilene Christian University * American Theological Library Association * Asbury Theological Seminary * Ball State University * Bates College * Boston College * Brigham Young University * Butler University * California State University, Northridge * Claremont Colleges Library * Colby College * Columbia University * Dartmouth College * Embry-Riddle Aeronautical University * Florida Atlantic University * Florida International University * Florida State University * George Mason University * Georgetown University * Georgia Gwinnett College * Grand Valley State University * Gustavus Adolphus …


17th Annual Recent Developments In Ip Law And Policy Conference, William T. Gallagher Oct 2018

17th Annual Recent Developments In Ip Law And Policy Conference, William T. Gallagher

Intellectual Property Law

16th Annual Recent Developments in IP Law and Policy Conference

Golden Gate University School of Law

Program, October 26, 2018


Mccarthy Institute Moves To Golden Gate University, Michael Hunter Schwartz Oct 2018

Mccarthy Institute Moves To Golden Gate University, Michael Hunter Schwartz

Articles About GGU Law

This fall, Golden Gate University launched a new effort to assist its students in securing jobs in the technology sector by acquiring the prestigious McCarthy Institute. The Institute is jointly sponsored by the university’s law and business schools.


11th Circuit Court Of Appeals: Cambridge Univ. Press V.Albert, Opinion (2018), 11th Circuit Court Of Appeals Oct 2018

11th Circuit Court Of Appeals: Cambridge Univ. Press V.Albert, Opinion (2018), 11th Circuit Court Of Appeals

Georgia State University Copyright Lawsuit

No abstract provided.


Universities: The Fallen Angels Of Bayh-Dole?, Rebecca S. Eisenberg, Robert Cook-Deegan Oct 2018

Universities: The Fallen Angels Of Bayh-Dole?, Rebecca S. Eisenberg, Robert Cook-Deegan

Articles

The Bayh-Dole Act of 1980 established a new default rule that allowed nonprofit organizations and small businesses to own, as a routine matter, patents on inventions resulting from research sponsored by the federal government. Although universities helped get the Bayh-Dole Act through Congress, the primary goal, as reflected in the recitals at the beginning of the new statute, was not to benefit universities but to promote the commercial development and utilization of federally funded inventions. In the years since the passage of the Bayh-Dole Act, universities seem to have lost sight of this distinction. Their behavior as patent seekers, patent …


Infringement, Unbound, Sarah R. Wasserman Rajec Oct 2018

Infringement, Unbound, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.


Chinese Innovation And Global Integration- Theoretical Framework Of Perceived Insecurities In University Technology Transfer, Clovia Hamilton Oct 2018

Chinese Innovation And Global Integration- Theoretical Framework Of Perceived Insecurities In University Technology Transfer, Clovia Hamilton

Winthrop Faculty and Staff Publications

University technology transfer is growing in China and is vital to China’s innovation and intellectual property program. This paper provides a literature review used to create a theoretical framework for explaining conflicts between university technology transfer participants. Economic development and business competitiveness relies on innovation and intellectual property generation. Given increased investments in university research and Chinese universities, it is important to be aware of conflicts between university technology transfer office staff and faculty within academic exchanges. University technology transfer is growing in China and is vital to China’s innovation and intellectual property program. Conflicts between university technology transfer participants …


Black Americans Past And Present Created Frugal Innovations And Embraced Circular Economy Principles: The Marketing Dilemma, Clovia Hamilton Oct 2018

Black Americans Past And Present Created Frugal Innovations And Embraced Circular Economy Principles: The Marketing Dilemma, Clovia Hamilton

Winthrop Faculty and Staff Publications

Frugal innovation is the practice whereby the rich learns from innovations developed in poor countries, and there is purportedly a current rivalry between India and China in the frugal innovation arena. This research advocates that the concept of frugal innovation did not originate in Asia or India. The practice of the rich taking the poor’s innovations is not new. In particular, Black American slaves and freed slaves developed a number of inventions in poverty conditions. It is imperative that frugal innovation research be more historically accurate so as to reduce the marginalization of contributions developed by poor innovators and to …


A Cochrane Method Systematic Review Of University Tech Commercialization Research, Clovia Hamilton Oct 2018

A Cochrane Method Systematic Review Of University Tech Commercialization Research, Clovia Hamilton

Winthrop Faculty and Staff Publications

Since 1980 universities have been able to commercialize inventions that their faculty researchers create as per the 1980 Bayh-Dole Act (P.L. 96-517). Research universities can now own and license these inventions to small and well established companies. Since 1980, research universities have used tech commercialization to support their regional economies with product development and sales, and academic entrepreneurship resulting in university spinoffs and start-up business formations. This results in job creation. The technology transfer offices (TTOs) which were established at many research universities to manage this process have been studied quite extensively. However, the foundational elements that fuel successful TTO …