Intellectual Property Law Commons^™

Online Business Reviews And The Public Figure Doctrine: An Advertising-Based Standard, Jenna Morton

UC Law SF Communications and Entertainment Journal

Online reviews exert a powerful influence of consumers, who rely on the reviews to choose restaurants, barbers, doctors, and many other businesses. Businesses also rely on the reviews as an important form of advertisement. False reviews thus harm both businesses and consumers. Businesses that are harmed by false online reviews can bring a defamation action against the reviewer. However, the current legal standard is unclear as applied to businesses, as it looks to whether an individual is a "public figure." This note weighs the costs and benefits of three possible legal standards for businesses bringing defamation actions: (1) a bright …

Of Guilds And Men: Copyright Workarounds In The Cinematographic Industry, Adriane Porcin

UC Law SF Communications and Entertainment Journal

The motion picture industry utilizes a varied collection of more or less formal mechanisms for dealing with the collective nature of audiovisual works, ranging from collective bargaining to legal presumptions. What these instances of copyright workarounds have in common is that they are all about circumventing traditional notions of authorship (the right to be deemed the author of a work) and ownership (the right to exert control over a work). When considered from an international perspective, the cinematographic industry is fertile ground for an exploration of such mechanisms.

After a recitation of the Berne Convention, this paper will proceed to …

Crowdsourcing A Trademark: What The Public Giveth, The Courts May Taketh Away, Llewellyn Joseph Gibbons

UC Law SF Communications and Entertainment Journal

There is a long tradition of trademark holders relying on the public to create designations that they then adopt as a trademark. Historically, this has been a long and slow process. Acquiring secondary meaning from the individual's first use of the designation could take years. Web 2.0 and other forms of social media have the potential to speed up this process through the use of User Generated Content ("UGC"). Frequently, coined designations are nicknames for well-known brands, so they are potentially quite valuable. Trademark law is ambiguous regarding who owns a designation created by the public, if the individual claiming …

Competitive Entertainment: Implications Of The Nfl Lockout Litigation For Sports, Theatre, Music, And Video Entertainment, Henry H. Perritt Jr.

UC Law SF Communications and Entertainment Journal

The 2011 dispute between the National Football League ("NFL" or "League"), representing the football teams, and NFL Players' Association ("NFLPA," or "Players," or "Players Association"), the union representing its football players, oscillated among the collective bargaining table, the National Labor Relations Board ("NLRB"), and the courts. The League preferred labor law as the matrix of the controversy. The Players preferred antitrust law. Ultimately, the union's most powerful weapon was not to withhold player services in a strike, but to challenge various anticompetitive arrangements wanted by the teams under the antitrust laws.

This article begins with a brief review of the …

The Same Song And Dance: F.B.T. Productions, Llc V. Aftermath Records And The Role Of Licenses In The Digital Age Of Copyright Law, John P. Uetz

Villanova Law Review (1956 - )

No abstract provided.

Did Learned Hand Get It Wrong?: The Questionable Patent Forfeiture Rule Of Metallizing Engineering, Dmitry Karshtedt

Villanova Law Review (1956 - )

No abstract provided.

Hydraulic Fracturing Additives: A Solution To The Tension Between Trade Secret Protection And Demands For Public Disclosure, Travis D. Van Ort

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Harvesting A Lawsuit: Challenging The Enforcement And Validity Of Monsanto's Transgenic Seed Patents, Kelly E. Calder

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Games Are Not Coffee Mugs: Games And The Right Of Publicity, 29 Santa Clara Computer & High Tech. L.J. 1 (2012), William K. Ford, Raizel Liebler

UIC Law Open Access Faculty Scholarship

Are games more like coffee mugs, posters, and T-shirts, or are they more like books, magazines, and films? For purposes of the right of publicity, the answer matters. The critical question is whether games should be treated as merchandise or as expression. Three classic judicial decisions, decided in 1967, 1970, and 1973, held that the defendants needed permission to use the plaintiffs' names in their board games. These decisions judicially confirmed that games are merchandise, not something equivalent to more traditional media of expression. As merchandise, games are not like books; instead, they are akin to celebrity-embossed coffee mugs. To …

Chinese Patents As Copyrights, 34 Campbell L. Rev. 685 (2012), Benjamin Liu

UIC Law Open Access Faculty Scholarship

Although harmonization efforts such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Patent Corporation Treaty regime have brought national patent systems closer, differences among them remain a continuing challenge to innovators in an interconnected global marketplace. The recent development of the Chinese patent system is of particular interest because China is the factory of the world, the most populous market, the home of the patent office that handles the most patent application filings, and the number one source of imports that violate intellectual property rights (IPR). Its patent system affects every company whose supply chain, …

Museum Policies And Art Images: Conflicting Objectives And Copyright Overreaching, Kenneth D. Crews

Fordham Intellectual Property, Media and Entertainment Law Journal

Museums face steady demand for images of artworks from their collections, and they typically provide a service of making and delivering high-resolution images of art. The images are often intellectually essential for scholarly study and teaching, and they are sometimes economically valuable for production of the coffee mugs and note cards sold in museum shops and elsewhere. Though the law is unclear regarding copyright protection afforded to such images, many museum policies and licenses encumber the use of art images with contractual terms and license restrictions often aimed at raising revenue or protecting the integrity of the art. This article …

The Balance Of Power In Patent Law: Moving Towards Effectiveness In Addressing Patent Troll Concerns, Ahmed J. Davis, Karolina Jesien

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Internet Immunity: The Limits Of Contributory Trademark Infringement Against Online Service Providers, Rebecca Dunlevy

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Graduated Response By Industry Compact: Piercing The Black Box, Mary Lafrance

Scholarly Works

No abstract provided.

The Future Of Cybertravel: Legal Implications Of The Evasion Of Geolocation, Marketa Trimble

Scholarly Works

Although the Internet is valued by many of its supporters particularly because it both defies and defeats physical borders, these important attributes are now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by Internet users based on their geographical location—a territorial partitioning of the Internet. One of these attempts, for example, is the recent Stop Online Piracy Act (“SOPA”) proposal in the United States. This article, as opposed to earlier literature on the topic discussing the possible virtues and methods of erecting borders in cyberspace, focuses on …

Initial Impressions: Trademark Protection For Abbreviations Of Generic Or Descriptive Terms, Mary Lafrance

Scholarly Works

No abstract provided.

Gat, Solvay, And The Centralization Of Patent Litigation In Europe, Marketa Trimble

Scholarly Works

No abstract provided.

Trademark Apologetic Justice: China And The Three Laws, Xuan-Thao Nguyen

Articles

The article will proceed as follows. Part I discusses the three bodies of law constituting China’s trademark jurisprudence by tracing the development of Trademark Law, Anti-Unfair Competition Law and Civil Law. All of these laws contain relevant provisions pertaining to trademark reputation and remedies, including injunction, damages and public apology to eliminate any bad effects. As China Supreme People’s Court has a significant role in shaping trademark jurisprudence and apologetic justice, Part I also analyzes judicial directives that provide guidance and instructions to the lower courts in addressing trademark reputation remedies.

An analysis of only statutes and judicial directives, however, …

Apologies As Intellectual Property Remedies: Lessons From China, Xuan-Thao Nguyen

Articles

It is a frequent refrain that “the world is shrinking.” In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence and effect of Chinese law is likewise gaining in import. Chinese intellectual property law is no different.

One notable aspect of Chinese intellectual property law is the availability of apology as a remedy. Despite a culture that places a high value on apology, and considerable legal scholarship and precedent regarding apology as remedy, many in the United States scoff at the notion of …

Patents As Promoters Of Competition: The Guild Origins Of Patent Law In The Venetian Republic, Ted Sichelman, Sean O'Connor

Articles

Part II of this Article describes the artisan and merchant guild systems of the Venetian Republic. Part III explores the emergence of the patent system as a means for foreigners and Venetian citizens to compete with the guilds, as well as the eventual addition of negative exclusive rights to the basic license form of positive patent privileges. In so doing, contrary to the speculation of some scholars, we reject with near certainty the contention that the first patent law statute granting exclusionary rights for—in modern parlance—technological inventions was a silk-specific directive enacted by the Venetian Grand Council in the late …

Hired To Invent Vs. Works Made For Hire: Resolving The Inconsistency Among Rights Of Corporate Personhood, Authorship, And Inventorship, Sean M. O'Connor

Articles

This Essay focuses on the interrelation of three legal doctrines that affect the allocation of ownership and attribution of products of the human mind. The first, corporate personhood, grants corporations rights of personhood similar to those of natural persons. The second, the work-made-for-hire doctrine (WMFH) under copyright law, allocates ownership and attribution for copyrightable works to the employer of the natural-person author—even where that employer is a nonnatural, legal person such as a corporation. And the third, shop rights and the hired-to-invent exception, permits courts to grant equitable licenses or assignments to employers for their employees’ inventions.

These three doctrines …

Princo Corp. V. Int'l Trade Comm'n: Patent Misuse No Longer A Deterrent To Anticompetitive Behavior In The Group Venture Context, Brian D. Hill

Journal of Business & Technology Law

No abstract provided.

An Information-Gathering Approach To Copyright Policy, Matthew Sag

Faculty Publications & Other Works

For over a century and with increasing frequency, major controversies have erupted between large distributors of copyrighted works (song publishers, movie studios, record labels, book publishers, etc.) and makers of new technologies for experiencing those works (player piano manufacturers, VCR manufacturers, the creators of file sharing software, Google Books, etc.). Usually, the copyright owners and the technology firms reach a licensing deal-but not without some form of government intervention. Various institutions within the federal government have become involved in these disputes, using a variety of different mechanisms. This Article is a theoretical investigation of government intervention in these content-technology copyright …

A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser

Faculty Scholarship

The article uses two hand‐collected data sets to implement a novel research design for analyzing the precursors to patent quality. Operationalizing patent “quality” as legal validity, the article analyzes the relation between Federal Circuit decisions on patent validity and three sets of data about the patents: quantitative features of the patents themselves, textual analysis of the patent documents, and data collected from the prosecution histories of the patents. The article finds large and statistically significant relations between ex post validity and both textual features of the patents and ex ante aspects of the prosecution history (especially prior art submissions and …

Speaking Of Moral Rights: A Conversation Between Eva E. Subotnik And Jane C. Ginsburg, Jane C. Ginsburg, Eva E. Subotnik

Faculty Scholarship

A transcribed conversation about moral rights in the digital age — in respect of some of the legal and technological developments that have occurred since Professor Jane Ginsburg's 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?, 19 Cardozo Arts & Ent. L. J. 9 (2001).

The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh

Faculty Scholarship

Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms. Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. While this instrumental focus may have the beneficial effect of limiting copyright’s unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus …

The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh

Faculty Scholarship

In this Essay, I attempt to disaggregate the Second Circuit’s decision in Barclays Capital to show that while the court may have reached the right conclusion in the end (a position I have argued for previously), its reasoning to reach that conclusion is rather confusing, while at the same time a rich source of information about the future of hot news doctrine. At every stage of its analysis, the Second Circuit went to significant lengths to cabin the reach of the doctrine quite considerably, despite reiterating that it was not abrogating it altogether. In analyzing the opinion, I thus consider …

A Case Against Acta, Kenneth L. Port

Faculty Scholarship

The Anti-counterfeiting Trade Agreement (ACTA) is being considered by the Obama Administration as an Executive Order. If signed, this Order will greatly enhance controls placed at the borders of 36 countries to attempt to stop the international flow of so-called counterfeit goods. To remove the social, political and emotional sensitivity, I adopt the value neutral term of “imitative commodity” to describe what some call counterfeits, knockoffs, pirates, etc. This article uses just three manufacturers of luxury status goods to consider whether the ACTA will have positive or negative consequences. It concludes that the data supporting the need for the ACTA …

A Proposal For An Alternate Dispute Resolution Process For The Fashion Industry After The Innovative Design Protection And Piracy Prevention Act, David Reap

Cardozo Journal of Conflict Resolution

This Note will explore the way alternative dispute resolution can be used to ensure that the proposed IDPPPA meets its stated goal without unnecessarily chilling creative efforts of unproven designers. Though the bill is aimed at stopping the proliferation of design copying (knockoffs), insiders are concerned that the bill will dissuade designers from producing designs that merely incorporate elements from other designs ("inspired-by" designs). Some believe that the judiciary will interpret the IDPPPA expansively, resulting in the punishment of designers who produce knockoffs as well as those who draw inspiration from other designs. However, a chilling effect could be mitigated …

Patent Reform And Best Mode: A Signal To The Patent Office Or A Step Toward Elimination, Ryan Vacca

Faculty Publications

On September 16, 2011, President Obama signed the America Invents Act ("AIA") the first major overhaul of the patent system in nearly sixty years. This article analyzes the recent change to patent law's best mode requirement under the AIA. Before the AIA, patent applicants were required, at the time of submitting their application, to disclose the best mode of carrying out the invention as contemplated by the inventor. A failure to disclose the best mode was a basis for a finding of invalidity of the relevant claims or could render the entire patent unenforceable under the doctrine of inequitable conduct. …