Intellectual Property Law Commons^™

Table Of Contents

Marquette Intellectual Property Law Review

None.

The Trademark Registration System In Japan: A Firsthand Review And Exposition , Masaya Suzuki

Marquette Intellectual Property Law Review

One current topic of trademark law that has become a major issue in recent years is foreign trademark rights. The business world is shrinking, and large international outfits need to protect the goodwill in their trademarks on a global scale. The key to gaining international trademark rights is in understanding foreign countries' trademark systems. Masaya Suzuki, a trademark examiner in the Japanese Patent Office, offers insight to the Japanese trademark system. Mr. Suzuki provides a history of Japanese trademark law and rationales for the current system. He explains the workings of the system on a step-by-step basis giving the structure …

The United States Court Of Appeals For The Federal Circuit: The Promise And Perils Of A Court Of Limited Jurisdiction , Randall R. Rader

Marquette Intellectual Property Law Review

Honorable Randall Rader, of the United States Court of Appeals for the Federal Circuit discusses current criticisms of the Federal Circuit and the speed of which the Circuit sets precedent. Before addressing these issues, Judge Rader posits a belief that the standard by which the Circuit is being judged is incorrect. Judge Rader's speech gives a foundation by which a correct standard should be exacted, examples of the current atmosphere leading to the precedents being set, and generally addresses why the Federal Circuit is fundamentally unique from other jurisdictions.

Source Code Escrow: An Exercise In Futility?, Jonathan L. Mezrich

Marquette Intellectual Property Law Review

Jonathan Mezrich argues that as businesses become more dependent upon computer software, they will also seek a means of protection for their investment in the software they purchase. Currently, a popular means of protection is through source code escrow. However, despite the current popularity of escrow accounts, Mr. Mezrich writes that these mechanisms may in fact not actually be necessary. He focuses on several key points that demonstrate this point including the life of the protected software, infrequency of escrow releases, and the move to open source applications. He also examines deficiencies of confidentiality, limited liability and indemnity as they …

Give The Smaller Players A Chance: Shaping The Digital Economy Through Antitrust And Copyright Law, Douglas L. Rogers

Marquette Intellectual Property Law Review

In this article, Mr. Rogers examines the tension in the digital world between the application of (a) antitrust law, which promotes competition and (b) copyright law, which limits competition in order to promote progress in science and art. He reviews the prohibitions against the exercise of monopoly power in section 2 of the Sherman Act (15 U.S.C.) and proposes a test for anti-competitive conduct that includes close scrutiny of the contract restrictions and marketing practices of those that have significant market power. Arguing that product design decisions are not immune from antitrust review, he proposes examining alleged efficiency justifications for …

Measuring Fame: The Use Of Empirical Evidence In Dilution Actions , Adam Omar Shanti

Marquette Intellectual Property Law Review

Adam Omar Shanti explores the concepts of dilution and famousness under Trademark Law. Dilution is a protection afforded "famous" trademarks by the Lanham Act. In essence, it prevents the usage of marks on dissimilar items that resemble a famous mark to prevent the "gradual whittling away or dispersion of the identity and hold upon the public mind." Dilution can occur by 1) blurring, 2) tarnishment, or 3) alteration. To determine whether a mark is "famous", eight subjective criteria are evaluated, which often produces inconsistencies among the courts. Mr. Shanti argues that an empirically derived test for fame must be created …

The Rise And Fall Of Fences: The Overbroad Protection Of The Anticybersquatting Consumer Protection Act , Jonathan M. Ward

Marquette Intellectual Property Law Review

Jonathan Ward discusses viability of two means for resolution of disputes related to cybersquatting. Cybersquatting occurs when a party registers a domain name that contains someone else's trademark and then attempts to profit by selling or licensing the name to that party. Cybersquatting tends to be classified as direct cybersquatting and typosquatting, and actions involving domain name conflicts fall in four categories: 1) trademark infringement, 2) confusion of source, 3) dilution of a famous mark, and 4) bad faith registration. Recognizing the growing issue of cybersquatting, Congress passed the Anitcybersquatting Consumer Protection Act in 1999, which provided a litigious avenue …

"The Rich Man's Eight Track": Mp3 Files, Copyright Infringement, And Fair Use , Kathryn I. Mullen

Marquette Intellectual Property Law Review

An objective of copyright law is to promote creativity and the dissemination of ideas by granting artists, writers, and other creators of artistic works a limited monopoly in their works. MP3 files consist of a digital audio compression algorithm that makes an audio file smaller without reducing sound quality. One problem created by this technology is that when combined with the Internet, millions of people can simultaneously access, reproduce and distribute copyrighted works in digitized form without authorization. Under this premise, Ms. Mullen presents two case studies concerning MP3.com and Napster, in which she relates their various characteristics to copyright …

Digital Copyright, By Jessica Litman , J. Ryan Miller

Marquette Intellectual Property Law Review

Jessica Litman's book focuses on the Copyright Act, in relation to modern entertainment technology. For example, each time an image from the Internet is viewed through a personal computer, the viewer has reproduced the original image, because a computer's RAM makes a temporary copy in order to allow the image to be viewed. The entertainment industry's concern about potential copyright infringement resulted in the enactment of the Digital Millennium Copyright Act. Professor Litman provides a history of the negotiation and lobbying that created the Copyright Act of 1976, and then provides a commentary regarding Napster and the expanding amount of …

The Copyright Regime And Data Protection Legislation, Margaret Ann Wilkinson

Law Publications

No abstract provided.

The Future Of The Concurrent Use Of Trademarks Doctrine In The Information Age, David S. Barrett

UC Law SF Communications and Entertainment Journal

This article focuses on the concurrent use doctrine of trademarks. This doctrine allows different owners to use the same or similar trademarks in business if (1) the junior use is geographically remote to the senior use and (2) the trademark was adopted in good faith. The second element is interpreted differently, with a shrinking minority requiring no actual knowledge and the minority requiring no intent of the junior user to imply his goods are those of the senior user.

The author argues that the internet revolution has created substantial problems with the concurrent use doctrine. The first major issue is …

Fashion Runways Are No Longer The Public Domain: Applying The Common Law Right Of Publicity To Haute Couture Fashion Design, Samantha L. Hetherington

UC Law SF Communications and Entertainment Journal

Under present United States intellectual property law, clothing design is not protected by federal copyright, trademark/trade dress, or patent law. In fact, design piracy is sanctioned, if not encouraged. This article analyzes current intellectual property law and its failure to afford protection for clothing design. The author proposes that the doctrine of the right of publicity or personality could be applied to haute couture.

When A Patent Claim Is Broader Than The Disclosure: The Federal Circuit's Game Has No Rules, 1 J. Marshall Rev. Intell. Prop. L. 21 (2001), Robert L. Harmon

UIC Review of Intellectual Property Law

The Federal Circuit has become much less willing to enforce a claim that is broader than the specific embodiments described in the patent. Unfortunately, its decisions provide no guidelines for identifying such situations. Nor is the court consistent in its attacks on the problem. Sometimes it simply construes the claim as limited to the specific embodiment and finds no infringement. Sometimes it invalidates the claim for want of an adequate written description or for insufficient scope of enablement. It is suggested that a careful use of the reverse doctrine of equivalents would create stability and predictability with respect to this …

Commentary: International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Articles

The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection—or variations in that protection—hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …

The Freedom To Link?: The Digital Millennium Copyright Act Implicates The First Amendment In Universal City Studios, Inc. V. Reimerdes, David A. Petteys

Seattle University Law Review

This Note focuses on the application of the Digital Millenium Copyright Act (DMCA) to prohibit the posting and linking of "circumvention technology" on the Internet, while also addressing the larger issue of the unintended consequences that regulating cyberspace can have on free expression. Because hypertext links play such a fundamental role in the utility of the Internet, this Note argues that the application of the DMCA's anti-trafficking provisions to enjoin linking places a significant and unwarranted burden on the Internet as a forum for free expression. Section II is intended to provide a brief background of the technological and legal …

Patenting Industry Standards, 34 J. Marshall L. Rev. 897 (2001), Janice M. Mueller

UIC Law Review

No abstract provided.

Dna Patentability: Shutting The Door To The Utility Requirement, 34 J. Marshall L. Rev. 973 (2001), Donald L. Zuhn Jr.

UIC Law Review

No abstract provided.

Trademark Product Appearance Features, United States And Foreign Protection Evolution: A Need For Clarification And Harmonization, 34 J. Marshall L. Rev. 947 (2001), William T. Fryer Iii

UIC Law Review

No abstract provided.

Computer-Aided Drug Design Using Patented Compounds: Infringement In Cyberspace?, 34 J. Marshall L. Rev. 1001 (2001), Ted L. Field

UIC Law Review

No abstract provided.

Icann't Use My Domain Name? The Real World Application Of Icann's Uniform Domain-Name Dispute Resolution Policy, 34 J. Marshall L. Rev. 1027 (2001), Karl Maersch

UIC Law Review

No abstract provided.

Better Patent Law For International Commitment - The Amendment Of Chinese Patent Law, Jiwen Chen

Richmond Journal of Global Law & Business

On August 25, 2000, the Chinese National People’s Congress (“NPC”) passed and amendment to the Chinese Patent Law. The Chinese Patent Law was enacted in 1984 and first amended in 1992. This second Amendment, in August of 2000, was made in anticipation of China’s accession to World Trade Organization (“WTO”) and in response to the need for protection of domestinc intellectual property rights.

Trade Secrets, The First Amendment And The Challenges Of The Internet Age, David Greene

UC Law SF Communications and Entertainment Journal

Trade secret owners often come into conflict with the First Amendment rights of free speech and free press when they seek to restrict the publication of their trade secrets by others. Although the Uniform Trade Secrets Act provides some remedies for the unauthorized disclosure of trade secrets, First Amendment principles can make it difficult for trade secret owners to obtain such relief, especially when the publisher of the trade secret owes no duty of confidentiality to its rightful owner. Some trade secret owners have argued that trade secrets should be immune from First Amendment scrutiny, but there is no historical …

The Supreme Court And Trade Dress - A Short Comment, William P. Kratzke

UC Law SF Communications and Entertainment Journal

In the last nine years, the United States Supreme Court decided four cases that concern trade dress and the doctrine of functionality. With these decisions, the Court broadened the doctrine of functionality and narrowed the protection available for product configuration. The Court correctly held that the protection for a product's trade dress should not be as high as the protection for its trademark because consumers do not expect trade dress to function as trademarks do in identifying a product and its source. The author concludes that the Court has redefined the protection of trademark interests in these four cases so …

Year Of The Living Dead: California Breathes New Life Into Celebrity Publicity Rights, Rhett H. Laurens

UC Law SF Communications and Entertainment Journal

The use of images of deceased actors in film has become increasingly controversial in recent years. Advances in digital imaging technology have made it possible to manipulate these images to such an extent that it will soon be feasible to produce films in which they play leading roles. The lack of legal protections available to the deceased actors' heirs, who want the rights to control the use of the actors' images for both creative and economic reasons, prompted Fred Astaire's widow and other Hollywood celebrities to push for passage of the Astaire Celebrity Image Protection Act. Signed into law in …

Lessons From The Anticommons: The Economics Of New York Times Co. V. Tasini, Francesco Parisi, Catherine Ševčenko

Kentucky Law Journal

No abstract provided.

E-Obviousness, Glynn S. Lunney Jr.

Michigan Telecommunications & Technology Law Review

As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …

Cybercoverage For Cyber-Risks: An Overview Of Insurers' Responses To The Perils Of E-Commerce, Robert H. Jerry Ii, Michele L. Mekel

Faculty Publications

With nearly seven percent of the world's population currently online and e-commerce forecast to hit $6.8 trillion by 2004, one need not be Nostradamus to predict that the Internet means great change for all industries - including the insurance industry. Presently, however, the proverbial cart is leading the horse as the insurance industry struggles to develop strategies to quantify, cover, and contain "cyber-risks." Policyholders also face new challenges as they confront the possibility that their traditional insurance coverages are woefully inadequate either to secure their electronic and intellectual property assets or to guard against their potential e-commerce liabilities to third …

The Marriage Of Intellectual Property And Insurance Law: An Introduction, Leo P. Martinez

Faculty Scholarship

No abstract provided.

Turning Gray Into Green: Some Comments On Napster, Shubha Ghosh

UC Law SF Communications and Entertainment Journal

File sharing involves a combination of legitimate distribution and illegitimate copying, and the two cannot be separated. The prevailing argument in the Ninth Circuit's Napster opinion, that he infringement is not in the distribution or the sharing, but in the copying, ignores the merger of copying and distribution. This article analyzes the economics of intellectual property, and applies that economic analysis to Napster as an alternative mechanism for the distribution of music. This article suggests that owners of file sharing systems like Napster privatize their economic interests through intellectual property law, by obtaining business method patent protection for file sharing …

The First Amendment As A Check On Copyright Rights, Alan E. Garfield

UC Law SF Communications and Entertainment Journal

Parties are increasingly raising the First Amendment as a potential limit on the scope of copyright rights. However, courts have traditionally found that copyright law already incorporates First Amendment interests, as it precludes protection of ideas and allows for the "fair use" of expression. This article addresses the issue of whether there needs to be additional First Amendment restraints. The author focuses on the broader principles of the First Amendment, and whether copyright law fully incorporates those principles. The author then discusses two recent cases, Worldwide Church of God v. Philadelphia Church of God and Los Angeles Times v. Free …