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Articles 691 - 694 of 694
Full-Text Articles in Intellectual Property Law
Ap V. Meltwater, United States District Court For The Southern District Of New York
Ap V. Meltwater, United States District Court For The Southern District Of New York
Historical and Topical Legal Documents
No abstract provided.
Is Pepsi Really A Substitute For Coke? Market Definition In Antitrust And Ip, Mark P. Mckenna
Is Pepsi Really A Substitute For Coke? Market Definition In Antitrust And Ip, Mark P. Mckenna
Journal Articles
Antitrust law explicitly depends on market definition. Many issues in IP law also depend on market definition, though that definition is rarely explicit. Applying antitrust traditional market definition to IP goods leads to some startling results. Despite the received wisdom that IP rights don't necessarily confer market power, a wide array of IP rights do exactly that under traditional antitrust principles. This result requires us to rethink both the overly-rigid way we define markets in antitrust law and the competitive consequences of granting IP protection. Both antitrust and IP must begin to think realistically about those consequences, rather than falling …
(Dys)Functionality, Mark P. Mckenna
(Dys)Functionality, Mark P. Mckenna
Journal Articles
The functionality doctrine serves a unique role in trademark law: unlike virtually every other doctrine, functionality can trump consumer confusion (or so it seems, at least in mechanical-functionality cases). In this sense, functionality may be the only doctrine in trademark law that can truly be considered a defense. But despite its potential power, the functionality doctrine is quite inconsistently applied. This is true of mechanical functionality cases because courts differ over the extent to which the doctrine focuses on competitors’ right to copy unpatented features as opposed to their need to copy. And aesthetic functionality cases are even more scattered: …
A Consumer Decision-Making Theory Of Trademark Law, Mark P. Mckenna
A Consumer Decision-Making Theory Of Trademark Law, Mark P. Mckenna
Journal Articles
The consumer search costs theory has dominated discussion of trademark law for the last several decades. According to this theory, trademark law aims to increase consumer welfare by reducing the cost of shopping for goods or services, and it accomplishes this goal by preventing uses of a trademark that might confuse consumers about the source of the goods with which the mark is used. This conceptual frame is wrong, and it is complicit in most of trademark law’s extraordinary expansion. “Search costs” is not sufficiently precise; many types of search costs are irrelevant to consumer behavior, and even when search …