Intellectual Property Law Commons^™

Squeezing The Juice® Out Of The Washington Redskins®: Intellectual Property Rights In "Scandalous" And "Disparaging" Trademarks After Harjo V. Pro-Football Inc., Cameron Smith

Washington Law Review

In Harjo v. Pro-Football Inc., the Trademark Trial and Appeal Board cancelled the federally registered trademarks THE WASHINGTON REDSKINS, REDSKINS, and REDSKINETIES after finding them to be disparaging matter under section 2(a) of the Lanham Act. Pro-Football has appealed the Board's decision to the U.S. District Court for the District of Columbia. This Note argues that Harjo's adoption of the "substantial composite" standard for analyzing disparaging trademarks potentially ignores the majority of the implicated group members' viewpoints and promotes section 2(a) trademark cancellations. In addition, the liberal standing requirements for opposition and cancellation proceedings combined with Harlo's disparagement doctrine …

Negotiating And Analyzing Electronic License Agreements, Duncan E. Alford

Faculty Publications

Mr Alford analyzes license agreements for electronic resources and suggests certain negotiation points to consider when entering into such an agreement. He begins by describing the results of a survey of law librarians about their preparation for and techniques used when negotiating electronic license agreements and the legal strategies used by publishers to support the licensing of electronic information. After reviewing selected principles of licensing issued by library associations and several standardized electronic license agreements, he identifies provisions in a typical agreement that should concern libraries and suggests certain arguments to use in negotiating terms more favorable to the library.

Quibbles'n Bits: Making A Digital First Sale Doctrine Feasible, Victor F. Calaba

Michigan Telecommunications & Technology Law Review

Whereas the first sale doctrine historically permitted the transfer and resale of copyrighted works, license agreements used by software companies and the DMCA's strict rules prohibiting tampering with access control devices frustrate exercise of the first sale doctrine with respect to many forms of digital works[...] This article explores the first sale doctrine as it pertains to digital works and proposes ways to make a digital first sale doctrine feasible. Part II describes the first sale doctrine as it has traditionally been applied to non-digital works. Part III discusses modern technology's impact on the distribution and use of copyrighted material. …

Researching Remedies In Intellectual Property Actions Involving Computer Technology: A Research Guide, Daniel N. Kassabian

Michigan Telecommunications & Technology Law Review

The purpose of this research guide is not to answer the question "What remedies are available to an owner of computer related technology whose rights have been infringed?" but to provide a methodology by which a legal practitioner can find the answer to this question. This guide sets forth materials and methods of research that can be used for an inquiry that is broad in scope, such as researching which legal scheme's remedial component best suits a client's technology, but that are also capable of being used for a narrow or limited inquiry, such as looking for specific remedies available …

Seeking A Balance: International Pharmaceutical Patent Protection, Public Health Crises, And The Emerging Threat Of Bio-Terrorism, Arnaldo Lacayo

University of Miami Inter-American Law Review

No abstract provided.

The Attibution Right In The United States: Caught In The Crossfire Between Copyright And Section 43(A), Roberta Rosenthal Kwall

Washington Law Review

The human impulse for attribution symbolizes the linkage between an author and her creative work. In many countries, authors are afforded a right of attribution as part of a broader doctrine known as moral rights. The United States, however, does not adequately protect moral rights. This Article focuses exclusively on the right of attribution as one component of the moral rights doctrine. Initially, it examines the connection between copyright law and the right of attribution and establishes the inadequacy of the current copyright law as a means of safeguarding the right of attribution. Next, it addresses why section 43(a) of …

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

Scholarly Works

The authors examine Eldred v. Ashcroft in a play setting where one of the characters plays a constitutional law professor and the other character plays an intellectual property professor.

Market Failure And Intellectual Property: A Response To Professor Lunney, Wendy J. Gordon

Faculty Scholarship

Professor Lunney's piece in this volume is interesting enough that I forgive him for misportraying my own work. In this short reply I will clarify my position, and then examine both the place of my market failure argument and the place of some of Professor Lunney's arguments within the future of Intellectual Property scholarship as a whole.

Neglecting The National Memory: How Copyright Term Extensions Compromise The Development Of Digital Archives, Deirdre K. Mulligan, Jason M. Schultz

The Journal of Appellate Practice and Process

No abstract provided.

Pliability Rules, Abraham Bell, Gideon Parchomovsky

Michigan Law Review

In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …

The Dmca: A Modern Version Of The Licensing Act Of 1662, L. Ray Patterson

Scholarly Works

The thesis of this Article is that the Digital Millennium Copyright Act of 1998 (DMCA) in the United States is a modern version of the Licensing Act of 1662 in England. The English censorship statute is sufficiently obscure to merit an explanation of why the similarity and why it makes a difference. The reasons can be simply stated. The statutes are similar because they represent the same goals: the control of access to ideas. The similarities make a difference because a legal construct to control public access to ideas undermines -- and will eventually destroy -- the right of free …

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

Scholarly Works

Scene: The quiet hallway of a law school. A troubled young professor of Intellectual Property law stands in front of a senior colleague's office and studies a pencil sketch of Bushrod Washington taped to the door. After a moment's hesitation, he knocks and enters.

Festo: Blessing To Patent Holders Or Thorn In Their Sides?, Jennifer Miller

Duke Law & Technology Review

The Supreme Court makes another attempt to strike a balance between protecting an inventor's patent rights and ensuring adequate notice to the public of what constitutes patent infringement. This iBrief discusses the Supreme Court ruling in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd. and its foreseeable effects on the practice of patent law.

Ipr : Information Technology, Subhashish Gupta

IIMB Management Review

How does one protect intellectual property in an intangible digital economy? Can mere ideas or algorithms be patented? Why is it that software can be patented in some circumstances and not in others? Are we barking up the wrong tree in pursuing patents while most IT technologies are related to standards? Discussing these issues and more are Shamnad Basheer, IT Attorney; T R Madanmohan, Associate Professor, IIMB and S D Sherlekar, Principal Consultant (Embedded Systems) at TCS Bangalore. Computer software, pointed out Shamnad Basheer, can be legally protected by patenting the software, copyrighting the source code and protecting the software …

Ipr : Experiences Of Inventors, Pavan Mamidi

IIMB Management Review

Why is it that our young scientist-inventors, bursting with ideas, baulk at the thought of patenting them and choose instead the more ‘respectable’ option of publishing papers? How do they reconcile their basic instinct to freely disseminate knowledge with the ground realities of ‘blocking the domain’ and competition from peers? Despite the claim of the authorities that there were well documented and standardised processes, M T Arvind of Sasken Technologies, Nithin Nagaraj of GE, Prof Sanjay Biswas from the Indian Institute of Science, Bangalore and Prof Kannan Moudgalya, Indian Institute of Technology, Bombay, endorsed a general ignorance of IP issues …

Trips And Ipr : The Heart Of The Matter, T N Srinivasan

IIMB Management Review

T N Srinivasan, currently Samuel C Park Jr Professor of Economics, Yale University and special advisor to the World Bank, raised the three issues which he feels are at the heart of the debate over TRIPS and IPR — Are patents necessary for innovation? What is the best way to provide life saving drugs to the poor at a price they can afford? What is the best way to minimise the cost of production of these drugs? There is the fundamental assumption in the utilitarian view that most IPR regimes subscribe to, that by granting a patent you are going …

Ipr : Pharmaceuticals, Rupa Chanda

IIMB Management Review

In the introductory panel of the Conference on IPR, the speakers included S Chandrasekaran, Deputy Controller of Patents & Designs, Govt of India; M D Nair, Consultant to the Pharmaceutical Industry, Chennai; P P Prabhu, former Commerce Secretary, Government of India; K Raghavendra Rao, MD, Orchid Chemicals & Pharmaceuticals and Jayashree Watal, Consultant to the WTO Secretariat. S Chandrasekaran clarified what constitutes intellectual property, what a patent is, and how an invention may qualify for a patent.He pointed out that as a participant in the TRIPS Agreement, India is obliged to modify her statutes to make her IPR regime TRIPS …

Ipr : Biotechnology And Agriculture, P D Jose

IIMB Management Review

The Biotechnology and Agriculture Panel saw Indira Ramaswamy, Fellow student, IIMB and M D Nair, consultant and author, discussing the opportunities and constraints of the biotechnology sector in India. Defining biotechnology as the use and manipulation of living organisms for the purpose of commercialisation, which includes the use of tissue culture, cell fusion, embryo transfer and recombinant DNA technology, Indira Ramaswamy detailed the market segmentation of biotechnology into health care, agriculture, industry and environmental applications and the Indian scenario vis a vis each of the segments. She described the key features of a biotechnology company and the main trend being …

The Personal Information Protection And Electronic Documents Act: A Comprehensive Guide By William Charnetski, Patrick Flaherty And Jeremy Robinson (Toronto Canada Law Book Inc., 2001), Teresa Scassa

Canadian Journal of Law and Technology

The Personal Information Protection and Electronic Documents Act: A Comprehensive Guide (the Guide) is the second book to be published in English in Canada dealing expressly with the Personal Information Protec- tion and Electronic Documents Act (PIPEDA). The Guide is different from the earlier work, in that it is not a section by section discussion or annotation of the provisions of PIPEDA. Rather, it is organized into eight chapters, each addressing a distinct theme or topic. The Guide is also aimed at a more professional audience than the earlier work. In its introduction, and in its choice of content, it …

Software Patents: What One-Click Buy And Safe Air Travel Have In Common, Michael Guntersdorfer

Duke Law & Technology Review

Have you ever sat in an airplane, typing on your laptop, when the darn thing crashes for the one-millionth time? Have you ever then thought about how the airplane you are sitting in is controlled by software, too--the technical term being "fly by wire"--and then started sweating uncontrollably? Software controls not only air traffic but plenty of other safety-critical technologies: the tightrope walk of controlling the chain reaction of radioactive elements in nuclear power plants; the navigation and activation of missiles;3 the moves and cutting-depth of a surgical laser when correcting eye-sights; the list goes on... With such reliance on …

Solving Legal Issues In Electronic Government: Jurisdiction, Regulation, Governance, John D. Gregory

Canadian Journal of Law and Technology

This paper looks at who can be governed, what can be governed, and how it can be governed in an electronic world. Whether law aims to be enabling (i.e., confirming the ground rules and the legal effectiveness of general conduct) or normative (i.e., imposing standards of conduct on more or less willing subjects), the new media presents difficulties for its rational evolution.

These are distinct questions from those raised by government online. Electronic service delivery issues tend to focus on how government can carry on its traditional programs using electronic means and how the law can support it in doing …

Global Trecs: The Regulation Of International Trade In Cyberspace, J. Steele

Canadian Journal of Law and Technology

This paper provides an overview of trade-related aspects of electronic commerce, and examines three approaches for regulating international trade in cyber- space. A model which integrates these approaches is then proposed, emphasizing private standards of self-regula- tion within a broader public framework of minimal background standards. A summary of potential areas of conflict between competing regulatory approaches fol- lows, and the paper concludes that both the WTO and the OECD have important roles to play in the develop- ment of international consensus towards a harmonized framework for the regulation of global TRECs.

M-Commerce: The Notion Of Consumer Consent In Receiving Location-Based Advertising, Eloïse Gratton

Canadian Journal of Law and Technology

The development of location-based advertising, for all its convenience and usefulness, introduces new and heightened privacy risks for consumers that must be addressed. The portability of wireless devices and the ubiquity of their applications, coupled with an ability to pinpoint the location of wireless users and reveal it to others, could produce a system where the everyday activities and movements of these users are tracked and recorded. Wireless users would receive unanticipated advertising messages on their wireless device, commonly referred to as ‘‘wireless spam’’, generally considered a form of privacy violation.

In order to obtain a valid consent from the …

Open Source, Open Arms: An Open-Ended Question, Alana Maurushat

Canadian Journal of Law and Technology

This paper is structured to address several aspects and challenges to the open source movement. Beginning with an outline of the historical and cultural components of the open source movement, the paper will move on to explore the economic and philosophical underpinnings of intellectual property. It will be demonstrated that open source finds itself uniquely situated within these theories and doctrines. The questions that open source poses for intellectual property will then be examined. My arguments will stem from the general premise that open source is threatened by three mechanisms: the uncertainty of the validity of open source licenses, potentially …

The Patriation Of .Ca, Gregory R. Hagen, Kim G. Von Arx

Canadian Journal of Law and Technology

Country code top level domains (‘‘ccTLD’’s), such as .ca, are distinct from generic top-level domains (‘‘gTLD’’s), such as .com, in that they are generally conceived to be associated with a specific country. In Canada, the authority to operate the technical functions of the .ca domain name registry has been delegated to the Canadian Internet Registration Authority (‘‘CIRA’’) by a United States non-profit corporation, the Internet Corporation for Assigned Names and Numbers (‘‘ICANN’’). The authority to make policy regarding the .ca has purportedly been delegated to CIRA by the Government of Canada. There is an issue, however, as to whether ICANN’s …

The New Singapore Domain Name Dispute Resolution Policy: The Context Of The Common Law And Icann's Udrp, Richard Wu

Canadian Journal of Law and Technology

In this article, I will analyse the salient features of the Policy and evaluate the extent to which they match international practice. I will focus, in particular, upon the Uniform Domain Name Dispute Resolution Policy (UDRP) and the rules made under the UDRP. The Internet Corporation for Assigned Names and Numbers (ICANN), the international body responsible for domain name management, adopted both in 1999. As the nature of domain name disputes and dispute resolution rules are very similar in different countries, domain name disputes are becoming a global phenomenon, leading to the development of a kind of ‘‘Internet common law’’. …

How Important Is A Title? An Examination Of The Private Law Created By The Motion Picture Association Of America, Edward Robert Mccarthy

University of Miami Law Review

No abstract provided.

Law And Order On The Wild, Wild West (Www), Jeffrey J. Look

University of Arkansas at Little Rock Law Review

No abstract provided.

Protecting Intellectual Capital In The New Century: Are Universities Prepared?, James Ottavio Castagnera, Cory R. Fine, Anthony Belfiore

Duke Law & Technology Review

In recent years, intellectual property has become increasingly important to academic institutions throughout the United States. As universities rely more heavily on trademarks and patents for additional revenue, questions arise as to whether these institutions are sufficiently protected by their current intellectual property policies. This iBrief explores the policies promulgated by a variety of academic institutions and assesses whether these universities are adequately protected by their policies.

The Extraterritorial Reach Of Trademarks On The Internet, Yelena Simonyuk

Duke Law & Technology Review

The advent of the Internet means incredible opportunity for global interaction. Consumers in Asia can buy from a small business in Louisiana, and businesses can advertise to a much wider market for a fraction of the cost of traditional media. But these benefits come with a dilemma: what to do about trademark infringement on the Internet. In a virtual world with no borders, what (and where) is the law?