Intellectual Property Law Commons^™

Actual Or Hypothetical: Determining The Proper Test For Trademark Licensee Rights In Bankruptcy, Laura D. Steele

Marquette Intellectual Property Law Review

As trademark rights become an increasingly valuable asset in Chapter 11 reorganizations, it is critical for Congress and the courts to clarify how trademarks will be treated in bankruptcy, particularly where the debtor is a trademark licensee. Without clarity, Chapter 11 reorganization may not be a viable option. This Comment urges that trademark licensees should not be stripped of a license simply because the licensee enters bankruptcy. Rather, where a licensee intends only to continue using an existing license under the terms of the existing agreement with the licensor, the licensee's use of that license should be uninterrupted during reorganization. …

An Uncomfortable Fit?: Intellectual Property Policy And The Administrative State, Kali Murray, Sapna Kumar, Jason Mazzone, Hannibal Travis

Marquette Intellectual Property Law Review

The Southeastern Association of Law Schools (SEALS) panel responds to the considerable scholarship on the increasing integration of administrative law into intellectual property policy. The discussion was conducted August 4, 2009, as part of SEALS' day-long Intellectual Property Workshop in West Palm Beach, Florida. Kali Murray moderated the panel, which included Sapna Kumar, Jason Mazzone, Hannibal Travis, and Jasmine Abdel-khalik.

Lessons Learned From Fifteen Years In The Trenches Of Patent Litigation , Rick Mcdermott

Marquette Intellectual Property Law Review

Marquette Law alum and partner with Alston+Bird, LLP, offers insights into patent litigation. In his speech, given March 5, 2010, McDermott examines how patent law developments such as Markman v. Westview Instruments, Cybor Corp. v. FAS Technologies, Inc., and In re Seagate have impacted the practice of patent infringement litigation.

Patent Challenges And Royalty Inflation, Michael Risch

Indiana Law Journal

No abstract provided.

Intellectual Property, Laurence P. Colton, Kerri Hochgesang, Todd Williams, Dana T. Hustins

Mercer Law Review

This Article surveys caselaw developments in the area of intellectual property relevant to the Eleventh Circuit during the 2009 calendar year. Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas of intellectual property law are patent law, trademark law (including areas such as domain name law and "cybersquatting"), copyright law, and trade secret law. Because patent law and copyright law are provided for in the United States Constitution, cases in these areas are litigated exclusively in federal courts. Trademark law and trade secret law have both federal and state aspects, and the cases in …

Journal Of Intellectual Property Law Editorial Board, 2010-2011, Journal Of Intellectual Property Law

Materials from All Student Organizations

No abstract provided.

To Opine Or Not To Opine, That Is The Question: A Discussion Of A Patent Agent's Representation Of Others Before The United States Patent And Trademark Office In Light Of Revised Rules Of Patent Ethics And Professionalism, Nathan D. Renov

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Reinventing Lisbon: The Case For A Protocol To The Lisbon Agreement (Geographical Indications), Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The Doha Development Agenda (Doha Round) of multilateral trade negotiations at the World Trade Organization (WTO) may fail unless a solution to the establishment of a multilateral register for geographical indications on wines and spirits (GIs) foreseen in the TRIPS Agreement is found. Failure of the Doha Round would entail serious intended and unintended consequences for the world trading system. Europe’s insistence on a Doha deal on GIs in now accompanied by demands from several developing countries for an extension of GI protection to products other than wines and spirits. Those demanders consider the current emphasis on alcoholic beverages to …

Pharmaceutical Patent Bargains: The Brazilian Experience, Bruno Salama, Daniel Benoliel

Cardozo Journal of International and Comparative Law

In the backdrop of the strict patent regime flatly adopted by the World Trade Organization (WTO) for all countries, a few countries constantly challenge this system through aggressive patent bargains. Within the pharmaceutical sector, noticeably, some countries now threaten to issue or otherwise actually issue compulsory licenses that may sway large pharmaceutical companies into selling drugs with large discounts or into granting voluntary licenses domestically. That is conspicuously the negotiation strategy adopted by Brazil in its negotiations with big international pharmaceutical companies.

This paper explains Brazil's aggressive bargaining approach based on an analysis of two aspects of its political economy. …

Lawyers Acting Badly, Or Not? Misconduct In Ip Litigation: Recent Examples And The Questions They Raise, Lisa Dolak

College of Law - Faculty Scholarship

Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity. however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.

Trial and appellate judges in a number of recent IP cases have wrestled with the issue of whether certain litigation tactics crossed the line between advocacy and abuse. For example, trial judges have recently rebuked …

Independent Creation And Originality In The Age Of Imitated Reality: A Comparative Analysis Of Copyright And Database Protection For Digital Models Of Real People, Bryce Clayton Newell

Brigham Young University International Law & Management Review

No abstract provided.

The Riddle Underlying Refusal-To-Deal Theory, Michael Jacobs, Alan Devlin

NULR Online

May a dominant firm refuse to share its intellectual property (IP) with its rivals? This question lies at the heart of a highly divisive, international debate concerning the proper application of the antitrust laws. In this short Essay, we consider a profound, yet previously unaddressed, incongruity underlying the controversy. Specifically, why is it that monopolists refuse to share their IP, even at monopoly prices? To resolve this issue, some have recommended compulsory licensing, which would require monopolists to license their IP in certain circumstances. This proposal, however, entails an inescapable contradiction, one rooted in the issue of monopolists’ seemingly inexplicable …

The Ptos Fast Track Takes Us In The Wrong Direction, Kristen Jakobsen Osenga

Law Faculty Publications

On June 3, 2010, the Patent Office issued a press release touting an initiative to reduce patent pendency by allowing patent applicants to pick the speed at which their applications are examined. Patent pendency has been an increasing problem in the Patent Office, jumping to 34.6 months last year from 26.7 months in 2003. The proposal has two main prongs: first, provide three paths to patent examination, and second, rely more heavily on foreign patent office efforts. While the press release provides some preliminary details about the proposal, further information is expected to be published in the Federal Register on …

Canada's Current Position With Respect To Sound Marks Registration: A Need For Change?, Marie-Jeanne Provost

Canadian Journal of Law and Technology

This paper analyses and criticizes Canada’s position on sound marks registration in order to recommend the ways in which Canadian policy-makers could further act in order to advance this area of law. The first part of this paper exposes the fundamental concepts of trade-marks as they are necessary to the comprehension of the problems surrounding the registration of sound marks. In the second part, legal considerations associated with the registration of sound marks are discussed. More specifically, the visual requirement, the issue of “use,” the concept of distinctiveness and the question of overlap with copyright are assessed. In the third …

Taming The Derivative Works Right: A Modest Proposal For Reducing Overbreadth And Vagueness In Copyright, Christina Bohannon

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court recently decided United States v. Stevens, a case challenging the constitutionality of a federal statute that punishes commercial depictions of animal cruelty, such as videos of dog fights. Concluding that the statute prohibited a good deal of speech that was unrelated to eradicating illegal animal cruelty, the Court held that the statute was substantially overbroad and therefore invalid under the First Amendment.

This case and other First Amendment cases help to shed light on the problems of overbreadth and vagueness in copyright law, particularly the derivative works right. The copyright holder's derivative works right prohibits others from …

Securing Global Trademark Exceptions: Why The United States Should Negotiate Mandatory Exceptions Into Future International Bilateral Agreements, Brian S. Kaunelis

Chicago-Kent Law Review

In December 2007, the European Union and the CARIFORUM States concluded a bilateral economic partnership agreement that included a mandatory fair use exception to trademark owners' rights. The EC-CARIFORUM Agreement is the first agreement that mandates the inclusion of Article 17 of the World Trade Organization's Agreement on Trade-Related Intellectual Property Rights and requires an exception to trademark rights. The push to balance international trademark owners' rights has begun, and this Note will detail why the United States should follow the European Union's lead and negotiate mandatory trademark exceptions into future bilateral agreements.

The Trips Agreement: Helping Or Hurting Least Developed Countries’ Access To Essential Pharmaceuticals?, Marla L. Mellino

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Cease-And-Desist: Tarnishment’S Blunt Sword In Its Battle Against The Unseemly, The Unwholesome, And The Unsavory, Regina Schaffer-Goldman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

A Sobering Conflict: The Call For Consistency In The Message Colleges Send About Alcohol, Marc Edelman, David Rosenthal

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Breaking Aro's Commandment: Recognizing That Inventions Have Heart, Bernard Chao

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Fumbling Away The Season: Will The Expiration Of The Nfl-Nflpa Cba Result In The Loss Of The 2011 Season?, Jeffrey F. Levine, Bram A. Maravent

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

"Willful Patent Filing": A Criminal Procedure Protecting Traditional Knowledge, Vincent M. Smoczynski

Chicago-Kent Law Review

This article explores the interaction between current intellectual property regimes and traditional knowledge and concludes that national laws currently in place inadequately protect traditional knowledge holders. When property rights are granted on traditional knowledge, the effects can extend not only to the indigenous communities, but to the surrounding ecosystems and the global market. Commercialization and increased demand leads to shortages in natural resources and increased prices. Therefore, in order to ensure that patent applicants are deterred from acquiring property rights in traditional knowledge, as well that traditional knowledge holders receive proper benefits for their labor and knowledge, this article advocates …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises V. Ncsoft, Carl Michael Szabo

Federal Communications Law Journal

Comic-book heroes show us how to be valiant, how to fight for those less fortunate, and, in some circumstances, how to combat those who break the law. Such is the situation in the case of Marvel Enterprises, Inc. v. NCSofl Corp., a battle between user-generated content and the copyright violations that resulted.

While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed, could endanger the protection afforded to authors. Federal and state suits have …

Lecture: Innovation, Incentives, Competition, And Patent Law Reform: Should Congress Fix The Patent Office And Leave Litigation Management To The Courts?, Paul Michel

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Sound Of Money: Securing Copyright, Royalties, And Creative "Progress" In The Digital Music Revolution, Armen Boyajian

Federal Communications Law Journal

Academics and popular critics alike want to distill, reform, or altogether destroy U.S. copyright law as we know it. Much of this stems from animosity toward the old-guard record industry's alleged practices of overcharging consumers, underpaying royalties to artists, and suing teenagers and grandmas. But what those calling for reform all seem to neglect is a tiny but inevitable fact: for the first time in history, composers and recording artists can keep their copyrights.

Tangible media sales are being replaced by P2P file sharing, retail downloads, and streaming Webcasts. Digital technologies and wireless networks have opened prime channels for music …

Canadian Personal Data Protection Legislation And Electronic Health Records: Transfers Of Personal Health Information In It Outsourcing Agreements, Dara Lambie

Canadian Journal of Law and Technology

Personal data protection and privacy of personal health information in the electronic era is a broad topic that includes consent, security measures and access considerations. The focus of this article is on one component of the larger picture: data transfers of personal health information that occur in the context of informa- tion technology (“IT”) outsourcing. If the societal good envisioned by an inter-jurisdictional EHR is to be fully realized, then the necessity of outsourcing is a reality that must be addressed.

Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer

Washington and Lee Law Review

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright Laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no Law... abridging the freedom of speech or of the press, " thus at least nominally indicating that limitations on …

Of Cameras And Courtrooms, Alex Kozinski, Robert Johnson

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Unbranding Of Brands: Advocating For Source Disclosure In Corporate America, Cassi G. Matos

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Inadequate: The Apec Privacy Framework & Article 25 Of The European Data Protection Directive, Stuart Hargreaves

Canadian Journal of Law and Technology

The EU and APEC approaches represent two different ways of thinking about the purpose of privacy rights in personal information (a.k.a. “informational privacy” or “data privacy”). The European approach sees integrity and control over information about oneself as inherent to human dignity; informational privacy is treated as a fundamental right subject only to limited restrictions. In contrast, the approach evinced by APEC is a market-oriented cost/benefit calculus; control over personal information is seen as a beneficial policy goal when it can increase consumer confi- dence and promote economic growth — the implication being that it can also more easily give …