Consumer Protection Law Commons^™

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Tech Policy And Legal Theory Syllabus, Yafit Lev-Aretz, Nizan Packin

Open Educational Resources

Technology has changed dramatically over the last couple of decades. Currently, virtually all business industries are powered by large quantities of data. The potential as well as actual uses of business data, which oftentimes includes personal user data, raise complex issues of informed consent and data protection. This course will explore many of these complex issues, with the goal of guiding students into thinking about tech policy from a broad ethical perspective as well as preparing students to responsibly conduct themselves in different areas and industries in a world growingly dominated by technology.

Discrimination And Privacy Concerns At The Intersection Of Healthcare And Big Data, James Koenderman

Cardozo Law Review

No abstract provided.

Pharmaceutical "Pay-For-Delay" Reexamined: A Dwindling Practice Or A Persistent Problem?, Laura Karas, Gerard F. Anderson, Robin Feldman

Articles

The Supreme Court ruled in FTC v. Actavis that a delay in generic entry may be anticompetitive when part of a patent settlement includes a large and otherwise unjustified value transfer to the generic company, termed a reverse payment patent settlement, or "pay-for-delay." Following Actavis, drug companies have limited the size of reverse payments and have fashioned settlement terms that include more discreet categories of compensation to generic companies. In light of the fact that such settlements retain the potential for anticompetitive effects, the apparent size of the reverse payment may no longer be a useful gauge of the …

Placebo Marks, Jake Linford

Pepperdine Law Review

Scholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance reputation. Critics characterize that result as wasteful, if not anticompetitive. But recent marketing research shows that trademarks with a high-performance reputation may sometimes influence perception to the benefit of the consumer. A trademark with a high-performance reputation can deliver a performance-enhancing placebo effect. Research subjects perform better at physical and mental tasks when they prepare or play with a product bearing …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

One Consumer’S Trash Is Another’S Treasure: Upcycling’S Place In Trademark Law, Jolie Brett Schenerman

Cardozo Arts & Entertainment Law Journal

The note argues that upcycling, the process of creating new, high-value products from salvaged materials, should be protected under trademark law's fair use doctrine. It contends that upcycling, unlike traditional infringement, does not confuse consumers about the source of goods and instead creates transformative works that benefit both sustainability and brand relevance. The analysis draws parallels between upcycling and parody, advocating for similar legal protections, and highlights the evolving relationship between luxury brands and upcyclers, from litigation to collaboration.

Unscrewing The Future: The Right To Repair And The Circumvention Of Software Tpms In The Eu, Anthony D. Rosborough

Articles, Book Chapters, & Popular Press

This analysis examines the impact of software technological protection measures (“TPMs”) in the European Union which inhibit the repair and maintenance of products. Using John Deere tractors as a case study, this analysis addresses the growing number of products which incorporate computerisation and TPMprotected software into their design and function. In utilising software integration and TPMs, many product designs now allow manufacturers to retain considerable control over the manner of repair and choice of technician. In response, consumers and lawmakers are calling for legal reforms to make self-repair and servicing easier. Both the competition law and moral implications of this …

Internet Architecture And Disability, Blake E. Reid

Publications

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris

Cleveland State Law Review

This Article continues to examine an important question: are trademarks a source of market power, or, put differently, when are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars. However, by raising the question and presenting some scenarios that can provide answers, my hope is that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest to address this question, I explore the proposition that creative deception and the wealth-generating capacity of trademarks are unorthodox elements that actually contribute to allegations of …

Makeup Or Fakeup?: The Need To Regulate Counterfeit Cosmetics Through Improved Chinese Intellectual Property Enforcement, Jennifer Lei

Fordham Law Review

This Note examines whether new developments in intellectual property enforcement are able to fix the notorious counterfeiting issue in China, particularly with counterfeit cosmetics. Counterfeit cosmetics are a threat to public safety in the United States and globally, especially as the cosmetics industry continues to expand. There are two opposing views on whether China’s intellectual property regime—in light of the 2017 to 2019 developments—is able to address the issue. This Note proposes that even with recent developments, current laws and enforcement methods do not reduce counterfeit production. Instead, this Note argues that the Chinese government should use educational campaigns to …

Intellectual Property Law And The Right To Repair, Leah Chan Grinvald, Ofer Tur-Sinai

Fordham Law Review

This Article posits that intellectual property law should accommodate consumers’ right to repair their products. In recent years, there has been a growing push towards state legislation that would provide consumers with a “right to repair” their products. Currently, twenty states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of these repair laws based on different concerns, including how these laws may impinge on their intellectual property rights. Indeed, a right …

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …

Net Neutrality And The European Union’S Copyright Directive For The Digital Single Market, Nathan Guzé

Loyola of Los Angeles International and Comparative Law Review

The European Union’s Copyright Directive for the Digital Single Market should cause concern for net neutrality advocates. This article casts a critical gaze at Article 17 (previously Article 13) of this new Directive. It chronicles the Directive’s life: starting as a reaction to the perceived inadequate copyright protections provided by the previous Information Society Copyright Directive through to its then-present status circa May 2019. Next, net neutrality is defined, and its benefits and detriments are weighed to ultimately determine the policy is desirable. Article 17’s call for eliminating safe-harbor provisions for content hosts and its call for content filters signal …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari

Faculty Publications

Imagine a future in which every purchase decision is as complex as choosing a mobile phone. What will ongoing service cost? Is it compatible with other devices you use? Can you move data and applications across de- vices? Can you switch providers? These are just some of the questions one must consider when a product is “tethered” or persistently linked to the seller. The Internet of Things, but more broadly, consumer products with embedded software, are already tethered. While tethered products bring the benefits of connection, they also carry its pathologies. As sellers blend hardware and software—as well as product …

Property And Equity In Trademark Law, Mark P. Mckenna

Marquette Intellectual Property Law Review

This lecture focuses on the relationship between trademark and unfair competition. Specifically, this lecture discusses the way trademark law has evolved over time with respect to property concepts. There has been a lot of discussion in the literature about the ways trademark law has come to treat trademarks as property. Many scholars who have written about this “propertization” have described it as a shift from consumer to producer protection.

I have written a lot about this narrative over the course of my career—I think it is overly simplistic, and in some ways, wrong. Trademark law has al-ways protected marks as …

Finding A Forest Through The Trees: Georgia-Pacific As Guidance For Arbitration Of International Compulsory Licensing Disputes, Karen Mckenzie

Marquette Intellectual Property Law Review

This paper will examine the challenges of international compulsory licensing by examining the issue historically and legally as well as offer possible solutions. Thus, this paper will explore the challenge of balancing corporate interests against the affordability and availability of pharmaceuticals by focusing on discrete situations in developing countries, the history of compulsory licensing, and how the World Health Organization (the “WHO”) and the WTO have attempted to tackle these challenges through compulsory licensing, and it will suggest a possible framework for use in arbitration, which balances equities through a Georgia-Pacific analysis.

Intellectual Property Law And The Right To Repair, Leah Chan Grinvald, Ofer Tur-Sinai

Scholarly Works

This Article posits that intellectual property law should accommodate consumers’ right to repair their products. In recent years, there has been a growing push towards state legislation that would provide consumers with a “right to repair” their products. Currently, twenty states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of these repair laws based on different concerns, including how these laws may impinge on their intellectual property rights. Indeed, a right …

Is It Reasonable To Block Unreasonable Advertisements? An Examination Of The Legality Of Ad-Blockers, Andrew Steele

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A Fair Use To Remember: Restoring Application Of The Fair Use Doctrine To Strengthen Copyright Law And Disarm Abusive Copyright Litigation, Lauren Gorab

Fordham Law Review

The primary goal of copyright law is to benefit the public. By rewarding authors with exclusive rights, such as the power to enforce copyright infringement, copyright protection is the means through which copyright law accomplishes this goal. Another way that copyright law pursues its goal is through the fair use doctrine—an invaluable utilitarian limit on copyright protection. However, fair use is, among other things, vague. The current application of fair use as an affirmative defense magnifies the doctrine’s problems and makes copyright law hospitable to abusive copyright litigation. Current proposals in this area of reform target either fair use or …

Update On Antitrust And Pay-For-Delay: Evaluating “No Authorized Generic” And “Exclusive License” Provisions In Hatch-Waxman Settlements, Saami Zain

San Diego Law Review

In Federal Trade Commission v. Actavis, the United States Supreme Court held that a patent litigation settlement where a branded drug company pays a generic drug company to end the litigation and delay launching its generic may violate the antitrust laws. Although the decision ended years of controversy over whether such settlements were subject to antitrust scrutiny, many issues remain unresolved concerning the lawfulness of these settlements. In particular, courts have struggled in assessing the legality of patent settlements between branded and generic drug manufacturers involving non-cash compensation or benefits. This article discusses one type of non-cash compensation that is …

Looking For Venue In The Patently Right Places: A Parallel Study Of The Venue Act And Venue In Anda Litigation, Mengke Xing

San Diego Law Review

Like any other type of litigation, venue is often an important strategic decision for patent infringement litigants. Under the traditional nation-wide venue rule, a patent owner was able to sue a corporate defendant almost in every district in the country, giving rise to abusive forum shopping and the popularity of the Eastern District of Texas. Last year, the Supreme Court in TC Heartland dramatically changed the legal framework of venue in patent litigation, while leaving some issues unaddressed. After a discussion of the evolvement of venue laws and the significance of TC Heartland, this Comment focuses on the Venue Equity …

Trademark's Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly, Glynn Lunney

Faculty Scholarship

Trademark law has de-evolved. It has transitioned from an efficient mechanism for ensuring competition into an inefficient regime for capturing economic rents. In this Article, I focus on the role that party self-interest has played in biasing the evolution of trademark law. This self-interest tends to lead parties to (1) challenge efficient legal rules and seek to replace them with inefficient, anticompetitive rules, and (2) accede to inefficient, anticompetitive rules once they are in place. Almost by definition, when a rule of trademark law promotes competition, it reduces the market surplus or rents that current producers capture. As a result, …

The Race Is On! Regulating Self-Driving Vehicles Before They Hit The Streets, Jack Liechtung

Brooklyn Journal of Corporate, Financial & Commercial Law

As the world braces itself for the unveiling of autonomous vehicles, the idea of regulation and oversight has gone largely undetected. Though some states have already begun enacting legislation ahead of the technology’s wide release, the regulatory landscape across the country is in disarray. It is imperative that both manufacturers and consumers be given some sort of uniform understanding as to how the automation is overseen throughout the manufacturing process and how liability will be levied in the case of inevitable mistakes on our nation’s roadways. This Note proposes that the National Highway Traffic Safety Administration be responsible for providing …

Privacy Of Information And Dna Testing Kits, Shanna Raye Mason

Catholic University Journal of Law and Technology

In modern times, consumers desire for more control over their own health and healthcare. With this growing interest of control, direct to consumer DNA testing kits have never been more popular. However, many consumers are unaware of the potential privacy concerns associated with such use. This comment examines the popularity and privacy risks that are likely unknown to the individual consumer. This comment also addresses the shortcomings of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as well as the Genetic Information Nondiscrimination Act of 2008 (GINA) in regard to protecting individual’s genetic information from misuse. This comment …

License To Bill: The Validity Of Coupling Automatic Subscription Renewals With Free Trial Offers By Online Services, Koren Grinshpoon

Fordham Intellectual Property, Media and Entertainment Law Journal

A prominent and expanding list of online services rely on a business model which pairs free trial offers with subsequent automatic subscription renewals (e.g., Amazon Prime, Blue Apron, etc.). Offering free trials to lure new users, while employing automatic renewal clauses in its terms of use to perpetuate recurring revenue, poses a substantial legal risk to online services. Numerous claims citing unfair and deceptive business practices are filed each year against such online services, primarily raising issues of informed consent, adequate disclosure, and notice. This Article reviews applicable federal law and regulations, as well as the applicable laws of all …