Law Commons^™

To "The" Or Not To "The"? The Question Has Been Answered: An Examination Of Trademark Bullying In The Context Of The Ohio State University's Recent Trademark Registration, Jennifer M. Danker

Journal of Intellectual Property Law

This Note examines the growing concern in the legal community around trademark bullying by specifically focusing on the registration of the word mark “THE” by The Ohio State University (“OSU”) and its potential for abuse and overreach in trademark enforcement. By carefully analyzing relevant legal precedent, statutory provisions, and USPTO administrative procedures, this Note critically considers the offered justifications for and likely consequences of the trademark’s registration.

By exploring the historical progression of trademark law, including its purpose and underlying principles, this Note provides a framework for evaluating the merits and potential concerns associated with the recent registration. Additionally, it …

When A “+” Doesn’T Add Anything In The Equation: Analyzing The Effect Of The “+” On Trademark Law, Vasilios Nasoulis

Journal of Intellectual Property Law

In the past decade, there has been a growing trend where companies use the plus sign, “+”, in their branding. From industry titans like Google and Apple to smaller, niche companies like World Champ Tech, there has been an increased use of the + in product and service names. This raises trademark questions about how the mark should be protected and how does the + change the meaning of a name. Trademarks are designed to protect producers as well as consumers from deceit, miscommunication, and misunderstanding. The + potentially denies producers and consumers these protections.

Another trend in the past …

Design On Someone Else's Dime: The Profiteering Of Interior Designer's Works From A Lack Of Rights In The Modern Era, Kim Carlson

Journal of Intellectual Property Law

Rooms once viewed as utilitarian in nature- places to work in, sleep in, or cook in- have gone through a dramatic transformation. Now, people view these rooms as an outward reflection of their style. In the last few decades, people’s eagerness to renovate these rooms exploded. As a result, home designer shows soared in popularity, garnering millions of views. Consumers flocked to different media forms and stores in search of the latest paint and furniture trends. The heightened demand, coupled with prevailing social media marketing, forced interior designers to become innovative in creating and advertising their services. While the increased …

Trademarking Recreational Marijuana And Potential Threats To The United States' Treaty Obligations, Charles Wells

Journal of Intellectual Property Law

The conflict between state and federal laws regarding the cultivation and sale of recreational marijuana results in inconsistent application of trademark protections between state and federal governments that could cause conflict with the United States’ treaty obligations under the TRIPS agreement. Whereas the federal government categorically denies trademark protections for marijuana-based products state governments protect trademarks belonging to recreational marijuana businesses through state and common law trademark protections. The United States is also obligated to ensure that foreign nationals and United States receive the same treatment regarding trademark protections under The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). …

It's Scandalous! -- Limiting Profane Trademark Registrations After "Tam" And "Brunetti", Gary Myers

Journal of Intellectual Property Law

Over the course of the last two years, the Supreme Court has engaged in a long-overdue assessment of the constitutionality of federal trademark law prohibitions on the registration of offensive marks. In its unanimous 2017 decision in Matal v. Tam, the Court held that the disparagement clause is a content-based provision that violates the First Amendment. In 2019, the Court in Iancu v. Brunetti held that the refusal to register the mark “FUCT” on grounds that it was immoral or scandalous would also violate the First Amendment. These cases offered an opportunity for the Court to clarify the proper role …

Fighting The Faceless Foe Known As The Online Trademark Counterfeiter: Forum Shopping Tactics In The Digital Age, Chelsea R. Feagle

Journal of Intellectual Property Law

This Note proceeds in two main parts. Part II provides a background for understanding trademark counterfeiting claims and remedies. It first examines the federal trademark protections alongside the state trademark protections and details the way in which they differ. Part II then breaks down the number of online trademark counterfeit cases filed in the United States and notes the percentage of those cases which are filed predominately in three federal district courts. Because it is difficult to comprehensively track this data, the principle import of the referenced statistical breakdown should be understood only as attempting to draw general conclusions from …

The Ip Of Ipas: A Look Into Trademark Infringement In The Craft Beer Industry, Shivani Patel

Journal of Intellectual Property Law

Alcohol isn't just a mind-altering drink: It has been a prime mover of human culture from the beginning, fueling the development of arts, language, and religion."' Alcohol production and consumption can be traced to civilizations dating back thousands of years all around the world, and it has become so essential to our society that experts have gone on to joke that humans should be called "Homo imbibens." Within the current alcohol industry, two essential qualities that are becoming more common are creativity and variety.

Alcohol has become a defining aspect of human culture and our sense of society. It has …

All For Copyright Stand Up And Holler! Three Cheers For Star Athletica And The U.S. Supreme Court’S Perceived And Imagined Separately Test, David E. Shipley

Scholarly Works

In March 2017 the United States Supreme Court held in Star Athletica L.L.C. v. Varsity Brands Inc. that an artistic feature incorporated into the design of a useful article could be protected by copyright when that feature could be perceived as a two- or three-dimensional work of art separate from the useful article, and imagined separately as a protectable pictorial, graphic, or sculptural work. This two-part test replaces a variety of tests which courts and commentators proposed and applied during the last 40 years. The Star Athletica decision is predicted to be a boon to the fashion and apparel industry, …

Caught Between A Mark And A Hard Place: Resolving U.S.-Cuban Trademark Disputes In A Post-Embargo World, Mary Grace Griffin

Journal of Intellectual Property Law

No abstract provided.

Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg

Journal of Intellectual Property Law

Part One of this article briefly defines some terms employed throughout and provides a short review of trademark principles. Parts Two and Three employ different methodologies to illuminate the functionality doctrine and the significance of Traffix. Part Two develops the etymology of important functionality standards including those considered in Traffix. It highlights links among the standards, and between the standards and evidence of functionality. Part Two's etymology suggests Part Three's economic methodology. The strength of the economic lens amplifies and simplifies the doctrine while its limitations help to explain why the functionality doctrine has been problematic and why Traffix is …

Private Property For Public Use: The Federal Trademark Dilution Act And Anticybersquatting Consumer Protection Act As Violations Of The Fifth Amendment Takings Clause, Brian C. Smith

Journal of Intellectual Property Law

No abstract provided.

See Ya Later, Gator: Assessing Whether Placing Pop-Up Advertisements On Another Company's Website Violates Trademark Law, Kirsten M. Beystehner

Journal of Intellectual Property Law

No abstract provided.

Pricey Purchases And Classy Customers: Why Sophisticated Consumers Do Not Need The Protection Of Trademark Laws, Meaghan E. Goodwin

Journal of Intellectual Property Law

No abstract provided.

State Regulation Of Keyword Advertising: A Lesson From The Utah Legislature, Mary Candice Barrett

Journal of Intellectual Property Law

No abstract provided.

An Alternate Functionality Reality, Harold R. Weinberg

Journal of Intellectual Property Law

The Supreme Court last addressed trade dress law’s functionality doctrine in TrafFix Devices, Inc. v. Marketing Displays, Inc. decided in 2001. This article applies content analysis to data from post-TrafFix functionality cases to provide insights concerning the functionality doctrine. It emphasizes data from cases concerning motions for summary judgment and preliminary injunction. The analysis employs two conceptual constructs: a “useful/aesthetic continuum” and “mixed-character” design features. The article also considers data in light of a “two-bar mandate” and two principles: “useful-scarcity” and “aesthetic-abundance.” It concludes with observations concerning the post-TrafFix functionality doctrine and suggestions for improving its judicial …

Confusion Codified: Why Trademark Remedies Make No Sense, Mark A. Thurmon

Journal of Intellectual Property Law

No abstract provided.

Sine Qua Non: Trademark Infringement, Likelihood Of Confusion, And The Business Of Collegiate Licensing, C. Knox Withers

Journal of Intellectual Property Law

No abstract provided.

Etw Corp. V. Jireb Publishing, Inc.: Turning An Athlete's Publicity Over To The Public, Michael J. Breslin

Journal of Intellectual Property Law

No abstract provided.

"Every Artist Is A Cannibal, Every Poet Is A Thief": Why The Supreme Court Was Right To Reverse The Ninth Circuit In Dastar Corp. V. Twentieth Century Fox Film Corp., Joshua K. Simko

Journal of Intellectual Property Law

No abstract provided.

Does The Lanham Act Lose Meaning For Companies That Operate Exclusively Over The Internet?, Sheila D. Rizzo

Journal of Intellectual Property Law

This Note will examine the differences between trademark registration and domain name registration, focusing specifically on the terms an applicant may register, the rights associated with those registrations, and the manner in which a registrant may lose, assign, and enforce those rights so that others my not use the same registered terms. This Note will also suggest that a company operating exclusively over the internet may obtain greater rights, and therefore protection, than a typical bricks and mortar company, simply by registering its domain name, and not trademark status.

Exceptionally Vague: Attorney Fee Shifting Under The Lanham Act, Kelsie Willett

Journal of Intellectual Property Law

No abstract provided.

Clearing The Brush: The Best Solution For The Uspto’S Continued “Deadwood” Problem, Leonard Robert Seifter Iii

Journal of Intellectual Property Law

No abstract provided.

Resolving Priority Disputes In Intellectual Property Collateral, Paul Heald

Journal of Intellectual Property Law

No abstract provided.

Passing The Virtual Buck: How The Ninth Circuit Used Contributory Trademark Law To Expand Liability For Web Hosts, Alessandra Backus

Journal of Intellectual Property Law

No abstract provided.

Convergence After All? A Comparative View On The U.S. And Eu Trademark System In The Light Of The "Trade Mark Study", Annette Kur

Journal of Intellectual Property Law

No abstract provided.

"Leave Little Guys Alone!": Protecting Small Businesses From Overly Litigious Corporations And Trademark Infringement Suits, Sara Marie Andrzejewski

Journal of Intellectual Property Law

No abstract provided.

A "Sunbeam" Of Hope: The Seventh Circuit's Solution Overcoming Disparaging Treatment To Trademark Licenses Under The Bankruptcy Code, Jarrod N. Cone

Journal of Intellectual Property Law

No abstract provided.

Fonts, Typefaces, And Ip Protection: Getting To Just Right, Emily N. Evans

Journal of Intellectual Property Law

No abstract provided.

Explicitly Explicit: The Rogers Test And The Ninth Circuit, Daniel Jacob Wright

Journal of Intellectual Property Law

No abstract provided.

Fighting Piracy With Censorship: The Operation In Our Sites Domain Seizures V. Free Speech, Michael Joseph Harrell

Journal of Intellectual Property Law

No abstract provided.