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Articles 241 - 270 of 309
Full-Text Articles in Intellectual Property Law
The Trademark Jurisprudence Of The Rehnquist Court, Graeme B. Dinwoodie
The Trademark Jurisprudence Of The Rehnquist Court, Graeme B. Dinwoodie
Marquette Intellectual Property Law Review
Professor Dinwoodie discusses the Rehnquist Supreme Court and its current approach to addressing trademark jurisprudence. Professor Dinwoodie concludes that although the Court has not employed a consistent methodological approach to resolving trademark problems, the opinions do suggest that there are certain values that dictate the outcomes in trademark cases before the Rehnquist Court.
Trips, Patents, And Access To Life-Saving Drugs In The Developing World, Bryan C. Mercurio
Trips, Patents, And Access To Life-Saving Drugs In The Developing World, Bryan C. Mercurio
Marquette Intellectual Property Law Review
This article critically analyzes the agreement implementing Paragraph 6 of the Doha Declaration. The author briefly details the trend of linking intellectual property rights to international trade before summarizing the pertinent provisions of the TRIPs Agreement. The author then introduces the controversy surrounding access to medicines by first detailing the global events that brought the issue to the fore and then by evaluating the accomplishments and unanswered questions of the Doha Declaration. The author also discusses the agreement implementing the Paragraph 6 Mandate, critically analyzes its provisions, and addresses several lingering questions and problems unaddressed by this agreement. The author …
What Are You Looking At? Eliminating Consideration Of The General Public And The Ultimate Question In A Trade Dress Initial Interest Confusion Analysis., Paul J. Krause
Marquette Intellectual Property Law Review
This comment addresses the concept of initial interest confusion in trade dress law and examines several different courts' approaches to the doctrine. Through the discussion, it becomes evident that while being careful to avoid bypassing an analysis of the likelihood of confusion factors, courts should also use the doctrine to determine confusion of potential purchasers. Failing to account for certain factors, such as the sophistication of the relevant consumer group, may allow courts to skew the likelihood of confusion factors in an initial interest confusion analysis. In sum, the author argues that courts should conduct a thorough analysis of likelihood …
Peer-To-Peer File Sharing And Technological Sabotage Tactics: No Legislation Required, Hillary M. Kowalski
Peer-To-Peer File Sharing And Technological Sabotage Tactics: No Legislation Required, Hillary M. Kowalski
Marquette Intellectual Property Law Review
This comment examines the current state of downloading of copyrighted material using peer-to-peer (P2P) technology. The author overviews the P2P technology and details tactics being used by copyright holders to protect their works on the P2P networks. The author next analyzes various legal issues surrounding the copyright-protection tactics. The author concludes by examining proposed legislation designed to benefit copyright holders and asserts that Congressional intervention enabling sabotage tactics will not solve the P2P problem because such retaliatory measures will only worsen the situation by aggravating music lovers.
What Does Pruneyard Have To Do With California Internet Trade Secret Law?, Adam J. Sheridan
What Does Pruneyard Have To Do With California Internet Trade Secret Law?, Adam J. Sheridan
Marquette Intellectual Property Law Review
This comment discusses the facts of the Bunner case and the decisions of the Sixth District and the Supreme Court. The Bunner case involves Andrew Bunner and his act of putting a link on his Web page allowing visitors to access a Digitial Video Disc (DVD) descrambler program, which allowed a computer user to decrypt DVDs. The DVD Copy Control Association sought an injunction against Bunner under the California Uniform Trade Secrets Act (UTSA). The author analyzes the historical protection given free speech and trade secrets under California law. Looking at the Bunner case in light of Pruneyard, the author …
Market Definition In Intellectual Property Law: Should Intellectual Property Courts Use An Antitrust Approach To Market Definition?, Anna F. Kingsbury
Market Definition In Intellectual Property Law: Should Intellectual Property Courts Use An Antitrust Approach To Market Definition?, Anna F. Kingsbury
Marquette Intellectual Property Law Review
In her Article, Ms. Kingsbury notes that American courts do not use antitrust law's market definition approach in intellectual property cases. She discusses five potential rationales for this dichotomy: (1) intellectual property cases involve new products without defined markets; (2) market definition limits judicial flexibility; (3) courts do not want to burden intellectual property litigants with the time and expense of economic evidence; (4) judges reason from precedent, and that precedent did not consider market definition; and (5) "market" conveys a different meaning in intellectual property law than it does in antitrust law. Kingsbury presents counterarguments to these rationales and …
Protection For Indigenous Peoples And Their Traditional Knowledge: Would A Registry System Reduce The Misappropriation Of Traditional Knowledge?, Thomas J, Krumenacher
Protection For Indigenous Peoples And Their Traditional Knowledge: Would A Registry System Reduce The Misappropriation Of Traditional Knowledge?, Thomas J, Krumenacher
Marquette Intellectual Property Law Review
This Comment examines the controversy over whether a registry system is the best way to prevent Western inventors from obtaining intellectual property protection for traditional knowledge that has been misappropriated from underdeveloped parts of the world. This dilemma exists because traditional knowledge often constitutes patentable subject matter, most indigenous peoples do not subscribe to a Western "property rights" view of the world, and exploitation of traditional knowledge has become easier through improved communication capabilities. This Comment argues in favor of a registry system to catalog traditional knowledge; patent examiners would deny patent protection to any invention that replicates traditional knowledge. …
Patenting The Biological Bounty Of Nature: Re-Examining The Status Of Organic Inventions As Patentable Subject Matter, Burton T. Ong
Patenting The Biological Bounty Of Nature: Re-Examining The Status Of Organic Inventions As Patentable Subject Matter, Burton T. Ong
Marquette Intellectual Property Law Review
Mr. Ong discusses the controversy regarding biotechnology patents. Opponents of biotechnology patents are concerned that these patents show disrespect for life and nature, expropriate the traditional knowledge of indigenous communities, and encourage practices that threaten the environment. Proponents of biotechnology patents argue that patents are, at worst, neutral on such issues because they only grant a right to exclude; moreover, such patents encourage innovation in the public interest. Ong focuses instead on whether an individual inventor deserves an intellectual property right based on his contributions to a modified living organism or an organic substance derived from a living organism. He …
Trade Dress: Should Only The Secondary Meaning Trade Dress Standard Apply To Product Packaging? Or Should Courts Continue To Use The Inherently Distinctive Standard?, Jennifer L. Barwinski
Trade Dress: Should Only The Secondary Meaning Trade Dress Standard Apply To Product Packaging? Or Should Courts Continue To Use The Inherently Distinctive Standard?, Jennifer L. Barwinski
Marquette Intellectual Property Law Review
This Comment discusses the controversy over whether secondary meaning should be a prerequisite for trademark protection of product packaging, in light of Wal-Mart Stores, Inc. v. Samara Bros. The United States Supreme Court held in Wal-Mart that secondary meaning is a prerequisite for trademark protection of product design, limiting its earlier decision in Two Pesos, Inc. v. Taco Cabana, Inc. In discussing Wal-Mart's application to trademark protection for product packaging, this Comment focuses on the difficulty of distinguishing between product packaging and product design. This Comment argues that secondary meaning should be a prerequisite for trademark protection of product packaging; …
Counting Down Another Music Marathon: Copyright Arbitration Royalty Panels And The Case Of Internet Radio, Sara J. O'Connell
Counting Down Another Music Marathon: Copyright Arbitration Royalty Panels And The Case Of Internet Radio, Sara J. O'Connell
Marquette Intellectual Property Law Review
Ms. O'Connell won the Computer Law Association's 2003 Information Technology Law Writing Competition for this article discussing the controversy over Copyright Arbitration Royalty Panels ("CARPs"). A CARP sets royalty rates for the performance of copyrighted works when the copyright owner and the broadcaster have not agreed on those rates. Congress created CARPs as a way to encourage the creation of creative works and to promote public access to these creative works. Recently, a CARP recommended royalty rates for webcasting; the broadcasting of copyrighted works over the Internet. The CARP's recommendation was rejected by the Librarian of Congress, criticized by both …
The Community Trademark System: A Brief Introduction And Overview, Vincent O'Reilly
The Community Trademark System: A Brief Introduction And Overview, Vincent O'Reilly
Marquette Intellectual Property Law Review
Mr. O'Reilly discusses several different aspects of the trademark system in the European Community. The following subjects are included in his survey: (1) application; (2) opposition; (3) cancellation; (4) appeals; and (5) enforcement. Though formal and procedural requirements dominate this discussion, O'Reilly also discusses how these requirements have been applied and how traditional trademark issues have been resolved with regard to particular trademarks. He also discusses how the Community Trademark System interacts with the preexisting national trademark systems.
Whither European Trade Mark Law? Arsenal And Davidoff: The Creative Disorder Stage, S. M. Maniatis
Whither European Trade Mark Law? Arsenal And Davidoff: The Creative Disorder Stage, S. M. Maniatis
Marquette Intellectual Property Law Review
Professor Maniatis focuses on recent case law of the European Court of Justice (ECJ) to illustrate the present disorderly state of European trade mark law. With the advent of the Community Trade Mark within the European Union, the ECJ is in the process of shaping a new body of trade mark precedent that will influence both national registration laws and future legislative developments in trade mark and unfair competition law. The author proposes that this new course should be guided by basic principles of trade mark law rather than by compromise between adverse historical and national systems. The Article gives …
Keywords, Trademarks, And The Gray Market: Why The Use Is Not Fair, Lisa A. Nester
Keywords, Trademarks, And The Gray Market: Why The Use Is Not Fair, Lisa A. Nester
Marquette Intellectual Property Law Review
This Comment analyzes the escalating effects of Internet banner ads and gray marketers on trademark owners' ability to control the use and sale of their marks as keywords and metatags. To unify these concepts, Ms. Nester utilizes the facts behind a suit filed by Estee Lauder, Inc. against an Internet fragrance retailer and an Internet search engine. The suit alleged trademark infringement and unfair competition, among other things, for the Internet entities' unauthorized uses of Estee Lauder's registered trademarks in fragrances. The author explores the facilitating and enabling effect of the Internet on gray market, or parallel importation, activity, such …
Tailoring Patent Policy To Specific Industries, Dan L. Burk
Tailoring Patent Policy To Specific Industries, Dan L. Burk
Marquette Intellectual Property Law Review
Mr. Burk illustrates that federal courts have diverged along industry-specific paths when deciding patent cases. Burk highlights courts' disparate treatment of the biotechnology and computer software industries within the uniform patent statute. Due to industries' differing requirements for innovation and development, Professor Burk argues that the currently general patent statute and its incentive to innovate may be improved by tailoring it to specific industries. Burk creates a dialogue on what kinds of statutory schemes promote innovation. Citing the Supreme Court's statement in Diamond v. Chakrabarty that the patent statute is meant to cover anything under the sun made by man, …
The Role Of Intellectual Property Rights In Negotiating And Planning A Research Joint Venture, Kurt M. Saunders
The Role Of Intellectual Property Rights In Negotiating And Planning A Research Joint Venture, Kurt M. Saunders
Marquette Intellectual Property Law Review
This Article considers the role of intellectual property rights in research joint ventures. Professor Saunders begins by outlining the various advantages of pursuing research in a joint venture business form, including the sharing of expertise and investment costs. The author identifies and elucidates the intellectual property issues, as well as related licensing and antitrust implications, that arise in the joint venture context. Most notably, Saunders articulates the different intellectual property concerns that surface at each separate stage-from negotiation and planning, to termination of the collaboration.
A Role For The Business Attorney In The Twenty-First Century: Adding Value To The Client's Enterprise In The Knowledge Economy, Peter J. Gardner
A Role For The Business Attorney In The Twenty-First Century: Adding Value To The Client's Enterprise In The Knowledge Economy, Peter J. Gardner
Marquette Intellectual Property Law Review
Mr. Gardner explores the evolving role of business lawyers in the knowledge economy and explains how they must add value to clients' business endeavors. Intellectual property law is the central legal framework through which the business attorney will meet increasingly sophisticated client expectations. The attorney's value-adding service will enable the client to make better business decisions based on the attorney's analysis of the innovative opportunities available to the client. Gardner focuses on several evolving influences on the practice of law that will challenge the profession, such as globalization of commerce; multidisciplinary practice; commoditization of legal services; increased sophistication of clients; …
Stemming The Stem Cell Setback, Patrick J. Fleis
Stemming The Stem Cell Setback, Patrick J. Fleis
Marquette Intellectual Property Law Review
This Comment highlights the recent federal funding setbacks in the biotechnology industry and considers the resulting challenges to future research collaboration. After providing a historical background to stem cell technology, Mr. Fleis examines the passionately opposed public responses to the technology's use of embryos and to its future applications. Fleis continues by noting past legislative initiatives that have accelerated the ease of patenting biotechnology and research findings in general. The Comment addresses several possible solutions to the tension between limited government funding and continued stem cell research, such as the adoption of a more relaxed experimental use standard. Stem cell …
Comments On Cyber Copyright Disputes In The People's Republic Of China: Maintaining The Status Quo While Expanding The Doctrine Of Profit-Making Purposes, Wei Yanliang, Feng Xiaoqing
Comments On Cyber Copyright Disputes In The People's Republic Of China: Maintaining The Status Quo While Expanding The Doctrine Of Profit-Making Purposes, Wei Yanliang, Feng Xiaoqing
Marquette Intellectual Property Law Review
This Article addresses the status of cyber copyright disputes in the People's Republic of China with an inside view of the government's influence and control over copyrighted works. Examining cyber copyright case law, the authors seek to answer the question of whether China's 2001 Copyright Law will lead to an increase in royalty payments under a fair distribution system. The need for equitable, consistent enforcement is pressing, as the proliferation of copyrighted material through mobile phone and Internet use is rapidly increasing. In China, all current-affairs news first flows through state-run news organizations. Thus, in order to post the news, …
High Court Takes Right Turn In Traffix, But Stops Short Of The Finish Line: An Economic Critique Of Trade Dress Protection For Product Configuration, Timothy M. Barber
High Court Takes Right Turn In Traffix, But Stops Short Of The Finish Line: An Economic Critique Of Trade Dress Protection For Product Configuration, Timothy M. Barber
Marquette Intellectual Property Law Review
Mr. Barber examines the Supreme Court's recent treatment of trade dress protection for product configuration, also referred to as product design. Although the Wal-Mart and TrafFix decisions have begun to limit product configuration protection under trademark law, the high court should have gone further and eliminated product configuration protection, due to its monopolistic and anti-competitive effects. The Comment explores the history and effectiveness of the functionality doctrine, which attempts to resolve the conflict between patent and trademark law over protecting useful product designs. Since what constitutes a functional feature is not easily discerned, the doctrine fails to prevent firms from …
Quo Vadis?, Arthur J. Gajarsa
Quo Vadis?, Arthur J. Gajarsa
Marquette Intellectual Property Law Review
At the Fifth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property, held by Marquette University Law School on April 22, 2002, the Honorable Arthur J. Gajarsa delivered a speech entitled "Quo Vadis?" or "Where goest thou?" After articulating the strides made in intellectual property law over the past 20 years, Judge Gajarsa proposed and explained three technical areas where the court may see the most action over the next 20 years: (1) software and business methods; (2) biotechnology; and (3) nanotechnology.
Harmonizing Scope And Allocation Of Patent Rights In Europe - Towards A New European Patent Law, Christopher Heath
Harmonizing Scope And Allocation Of Patent Rights In Europe - Towards A New European Patent Law, Christopher Heath
Marquette Intellectual Property Law Review
A rise in European Patent litigation has increased awareness of patent enforcement and its difficulty given the lack of harmony between the European Patent Convention (EPC) and the European Community (Community) patent laws. The EPC and the Community have both attempted to harmonize certain aspects of their patent laws. In 1999, the EPC Member States developed four options for structuring a European system of patent enforcement. In 2000, the Community developed its regulation system known as the Community Patent Regulation. The author believes that the two proposals are great attempts but fail to address two key aspects: (1) the allocation …
Understanding The Impact Of The Digital Millennium Copyright Act On The Open Source Model Of Software Development, Theodore C. Mccullough
Understanding The Impact Of The Digital Millennium Copyright Act On The Open Source Model Of Software Development, Theodore C. Mccullough
Marquette Intellectual Property Law Review
Mr. McCullough discusses the Digital Millennium Copyright Act (DMCA), and the traditional and open source models of software development. He argues that the "DMCA supports the 'Traditional Model' of software development, at the expense of the 'Open Source Model,' by limiting the ability of open source developers to write programs that increase interoperability and by limiting their ability to engage in peer review for such programs." He also discusses the competing interpretations of the Reverse Engineering Safe Harbor and proposes statutory solutions to the overall lack of protection afforded to software developers using copyrightable materials to promote interoperability.
"Originality" After The Dead Sea Scrolls Decision: Implications For The American Law Of Copyright, Urzula Tempska
"Originality" After The Dead Sea Scrolls Decision: Implications For The American Law Of Copyright, Urzula Tempska
Marquette Intellectual Property Law Review
Ms. Tempska examines the Israel Supreme Court's ruling on August 31, 2002 regarding reconstruction and copyright infringement of the Dead Sea Scrolls. She reviews the copyrightability doctrine and its possible misapplications, illustrates the reconstruction process of the text involving the Dead Sea Scrolls, and describes the legal arguments and procedure of the Dead Sea Scrolls case. Tempska concludes that: 1) the arguments opposing copyright protection fail because they gloss over the facts of the reconstruction process and disregard the originality requirement for copyrightability under United States law; 2) the Israeli court's copyrightability analyses adequately accounted for the creative process, the …
Trademark Exhaustion In The European Union: Community-Wide Or International? The Saga Continues, Irene Calboli
Trademark Exhaustion In The European Union: Community-Wide Or International? The Saga Continues, Irene Calboli
Marquette Intellectual Property Law Review
Dr. Calboli discusses trademark exhaustion in the European Union. She proposes an international exhaustion standard to replace the community-wide exhaustion standard. In an international system, a trademark owner would exhaust his rights in other national jurisdictions when trademarked goods are placed on the market in any national jurisdiction where the trademark owner enjoys protection. Accordingly, the trademark owner will not be free to prevent international importation of genuine products bearing his trademark. Dr. Calboli describes the development of the community-wide exhaustion standard and its interpretative problems as part of the Trademark Directive. She then proposes changing to an international exhaustion …
Icann't Do It Alone: The Internet Corporation For Assigned Names And Numbers And Content-Based Problems On The Internet, Peter T. Holsen
Icann't Do It Alone: The Internet Corporation For Assigned Names And Numbers And Content-Based Problems On The Internet, Peter T. Holsen
Marquette Intellectual Property Law Review
Mr. Holsen discusses the history and development of the Internet Corporation for Assigned Names and Numbers (ICANN), which is a non-profit corporation that privately manages the Internet. He asserts that United States law does not properly support ICANN in its mission to solve the complex problems facing the Internet. One of the most important issues facing the Internet is the fact that adult-orientated materials are commonly and easily accessed by young children. Mr. Holsen feels that Congress needs to set standards by which ICANN can better categorize the adult materials on the Internet, but at the same time not infringe …
Will The United States Take The Plunge Into Global Patent Law Harmonization? A Discussion Of The United States' Past, Present, And Future Harmonization Efforts., Anneliese M. Seifert
Will The United States Take The Plunge Into Global Patent Law Harmonization? A Discussion Of The United States' Past, Present, And Future Harmonization Efforts., Anneliese M. Seifert
Marquette Intellectual Property Law Review
Ms. Seifert discusses the factors that shape harmonization of a global patent law system. She touches on how the philosophical differences of the United States, Japanese, and European patent systems have created difficulty in establishing a cohesive patent law system. The author then discusses international harmonization efforts such as WIPO and TRIPs and national patent law changes, such as the eighteen-month publication period created under the American Inventors Protection Act. In conclusion, the author discusses the future of patent harmonization, suggesting the need for a global, uniform method of patent interpretation for meaningful harmonization.