Intellectual Property Law Commons^™

Trademark Owner As Adverse Possessor: Productive Use And Property Acquisition, Jake Linford

Scholarly Publications

There is an ongoing debate over whether or not a trademark is “property,” and what the appropriate boundaries of such a property right might be. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property regimes and for trademark protection in particular. Others respond that a unified theory of property should be able to account for both real and intellectual property. Neither approach fully recognizes that property regimes are multifaceted. A close look at the critical features of particular regimes can pay unexpected dividends.

This Article reveals how …

Bidding On Trademarked Keywords In Search Engines: A Trademark Law Update, Ryan Baker

Washington Journal of Law, Technology & Arts

In March 2011, the Ninth Circuit modified the list of the most relevant factors for courts to consider when evaluating whether a business’s keyword bid on a competitor’s trademark causes a likelihood of confusion under the Lanham Act. Over ten years earlier, in Brookfield Communications v. West Coast Entertainment, the Ninth Circuit had held that using a competitor’s trademark in a website metatag for the purpose of achieving a more prominent place in search results creates “initial interest confusion” for consumers in violation of the Lanham Act. The Brookfield opinion formed what became known as the “Internet troika” test: …

Prometheus V. Mayo: Limited Implications For § 101 Jurisprudence, Jessica Belle

Washington Journal of Law, Technology & Arts

The United States Supreme Court recently confirmed the importance of the patent eligible subject matter inquiry under 35 U.S.C. § 101 when assessing whether a claimed invention (“claim”) is patentable in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The Court also stressed that patents will not be issued to a claim that simply recites a law of nature unless there are additional steps that ensure the claim is sufficiently tailored to not preempt further use of the natural law. The Court’s decision shocked the patent law community. However, decisions by lower courts since have demonstrated that Prometheus has not …

Hardly A Black-And-White Matter: Analyzing The Validity And Protection Of Single-Color Trademarks Within The Fashion Industry, Emilie Winckel

Vanderbilt Law Review

The fashion industry thrives because of the consuming public's desire to be affiliated with appealing brands. Some of these coveted brands are best identified by particular colors-for example, Tiffany & Co.'s blue, Hermes's orange, and Christian Louboutin's red. Others are internationally known for specific designs that incorporate color-such as Missoni's vibrant patterns. While these colors may be well- recognized symbols of specific brands, and thus deserving of trademark protection, designers rely on a broad and unrestricted array of colors in order to continue conjuring up the latest trends for each new season. Due to these often-competing interests inherent to the …

Closing A Loophole In Musicians' Rights: Why Digital Remasters Of Analog Sound Recordings Are Not Derivative Works Protected By The Copyright Act, Jon Peritz

Cardozo Public Law, Policy & Ethics Journal

The note argues that digital remasters of analog sound recordings do not qualify as derivative works under the Copyright Act, as they lack the requisite originality and substantial variation required for protection. This conclusion has significant implications for artists' termination rights, as allowing record labels to claim copyright in remasters would undermine the purpose of the Copyright Act's termination provisions, which aim to protect artists from unfair copyright transfers. The analysis emphasizes that remasters are primarily functional adaptations for the digital marketplace rather than creative works, and their protection would harm artists by limiting their ability to renegotiate rights or …

International Fashion Trends: The Business Of International Fashion Law, Barbara Kolsun, Jeff Goldfarb, Greg Weisman, Howard Robbins, Guillermo Jimenez, Lee Sporn, Frances Hadfield, Michael Wildes, Theodore Max, Doreen Small, Ali G. Marquart, Jeff Trexler, Georgia Kalivas, Peter Fields, Natalie Nixon

Cardozo Journal of International and Comparative Law

No abstract provided.

Notice Failure And Notice Externalities, Peter Menell, Michael J. Meurer

Faculty Scholarship

Economic theory suggests that notice plays a critical role in resource development. Resource developers will be disinclined to make significant investments without reasonable confidence that their projects will not violate the rights of others. Land rights systems and institutions generally provide reliable notice at relatively modest cost, enabling exclusionary rights to encourage efficient real estate development. Property boundaries, right structures, and neighbors with whom resource developers might have to negotiate conflicts can usually be ascertained relatively easily. Furthermore, zoning institutions generally provide relatively prompt, low cost, and reliable dispute resolution before developers need to expend substantial resources. Therefore, land claims …

Competitive Patent Law, William Hubbard

All Faculty Scholarship

Can U.S. patent law help American businesses compete in global markets? In early 2011, President Barack Obama argued that, to obtain economic prosperity, the United States must "out-innovate . .. the rest of the world,"¹ and that patent reform is a "critical dimension[]" ² of this innovation agenda. Soon thereafter, Congress enacted the most sweeping reforms to U.S. patent law in more than half a century, contending that the changes will "give American inventors and innovators the 21st century patent system they need to compete."³ Surprisingly, no legal scholar has assessed whether patent reform is capable of making …

Fair Use And Education: The Way Forward, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

The ability to make reasonable fair use of copyrighted material is both economically and culturally important to the enterprise of education. No other feature of copyright laws offers educators access of the same potential scope. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "economic exceptionalism, "for which there is no clear basis in U.S. copyright law. Nor can they expect to arrive at satisfactory shared understandings with copyright owners. Instead, they should seek to take advantage of current trends in copyright case law, including the marked trend toward preferring uses that are "transformative," where …

"Every Move That She Makes": Copyright Protection For Stage Directions And The Fictional Character Standard, Deana S. Stein

Cardozo Law Review

No abstract provided.

Capitol Records V. Redigi, United States District Court For The Southern District Of New York

Historical and Topical Legal Documents

No abstract provided.

Design Patents: Fashion’S Next Big Thing?, Brooke Olaussen

Intellectual Property Brief

No abstract provided.

Fifty Shades Of Grey Sues Smash Pictures Over Xxxadaption Of Steamy Series, Caroline Jamet

Intellectual Property Brief

No abstract provided.

Are Secondary Considerations Still “Secondary”?:An Examination Of Objective Indicia Of Nonobviousness Five Years After Ksr, John Paul Putney

Intellectual Property Brief

No abstract provided.

Icann’S New Generic Top-Level Domain Programand Appication Results, Amer Raja

Intellectual Property Brief

No abstract provided.

The United States Copyright Office:Nostalgia For The Past, Obstacle For The Future, Jacob Harper

Intellectual Property Brief

No abstract provided.

Ultramercial And Prometheus: How Transformation Analysis After Bilski Is Changing To Accommodate Modern Technologies, Sarah Beth Smith

Intellectual Property Brief

No abstract provided.

Forward, Jonas Anderson

Intellectual Property Brief

No abstract provided.

Access Copyright & Technology: Legal And Policy Issues In Education, Lisa Di Valentino

FIMS Presentations

Access Copyright is a collective organization representing the
copyright interests of publishers and creators. The collective offers
copyright licences that allow certain limited uses of works in the
collective's repertoire. The use of collective licences as part of
copyright management policy was common in post-secondary education
administration until 2010, when many universities opted out of a
contractual relationship with Access Copyright.

The growing movement towards online open access publishing and
Creative Commons public licensing has made information more widely
available without requiring payment and with fewer restrictions on
use. The addition of education to the list of fair dealing purposes …

Into A Silver Age: U.S. Patent Law 1992-2012, John R. Thomas

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Trademark Law Harmonization In The European Union: Twenty Years Back And Forth, William Robinson, Giles Pratt, Ruth Kelly

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright 1992-2012: The Most Significant Development?, Jane C. Ginsburg

Fordham Intellectual Property, Media and Entertainment Law Journal

On the occasion of the twentieth anniversary of the Fordham Intellectual Property Law & Policy Conference, its organizer, Professor Hugh Hansen, planned a session on “U.S. Copyright Law: Where Has It Been? Where Is It Going?” and asked me to look back over the twenty years since the conference’s inception in order to identify the most important development in copyright during that period. Of course, the obvious answer is “the Internet,” or “digital media,” whose effect on copyright law has been pervasive. I want to propose a less obvious response, but first acknowledge that digital media and communications have presented …

Technology And Intellectual Property: Out Of Sync Or Hope For The Future?, Bradford L. Smith

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

A Twenty-Year Retrospective On United States Trademark Law In Ten Cases, Marshall Leaffer

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Him’S Role In European Trademark Harmonization: Past, Present And Future, Paul Maier

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

International Copyright: An Unorthodox Analysis, Hugh C. Hansen

Fordham Intellectual Property, Media and Entertainment Law Journal

Professor Hansen reviews the development of copyright from its traditional domestic orientation to the modern emphasis on globalization and harmonization. His commentary analogizes modern trends in international copyright to religious equivalents. He notes that the current players include a “secular priesthood” (the traditional copyright bar and academics), “agnostics and atheists” (newer academics and lawyers, particularly those concerned with technology and the culture of the public domain) and “missionaries” (whose task it is to increase copyright protection around the world and who are primarily driven by trade considerations). The copyright “crusade” has been driven by this last group. The author compares …

A Road To Unification: Patent Litigation In The United Kingdom 1990-2012, Justin Watts, Tom Alkin

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright In Europe: Twenty Years Ago, Today And What The Future Holds, P. Bernt Hugenholtz

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Court Of Appeals For The Federal Circuit, After Three Decades, Pauline Newman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

From Microsoft To Google: Intellectual Property, High Technology, And The Reorientation Of U.S. Competition Policy And Practice, William E. Kovacic

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.