Intellectual Property Law Commons^™

About The Authors

Seattle Journal for Social Justice

No abstract provided.

Patent Cases And Public Controversies, Amelia Smith Rinehart

Notre Dame Law Review

The Article proceeds as follows. Part I summarizes the evolution of the current standard for justiciability in declaratory patent cases, including the Supreme Court’s MedImmune opinion and its progeny in the Federal Circuit and the lower courts. Part II discusses the growing trend of public interest patent litigation and the hurdles declaratory plaintiffs face on justiciability grounds despite courts’ approval of patent challenges generally on policy grounds. Finally, Part III introduces a legislative reform that promises to afford justiciability for some members of the public without compromising Article III’s emphasis on private adjudication.

Confusion Isn't Everything, William Mcgeveran, Mark P. Mckenna

Notre Dame Law Review

The typical shorthand justification for trademark rights centers on avoiding consumer confusion. But in truth, this encapsulation mistakes a method for a purpose: confusion merely serves as an indicator of the underlying problems that trademark law seeks to prevent. Other areas of law accept confusion or mistake of all kinds, intervening only when those errors lead to more serious harms. Likewise, every theory of trademark rights considers confusion troubling solely because it threatens more fundamental values such as fair competition or informative communication. In other words, when it comes to the deep purposes of trademark law, confusion isn’t everything.

Yet …

Copyright False Positives, Ben Depoorter, Robert Kirk Walker

Notre Dame Law Review

Copyright enforcement is riddled with false positives. A false positive occurs when enforcement actions are taken against uses that are not actual infringements. Far from benign occurrences, copyright false positives inflict significant social harm in the form of increased litigation and transaction costs, distortions of licensing markets through rent-seeking behavior, increased piracy due to diminished public adherence with copyright law, and the systemic erosion of free speech rights and the public domain.

To combat this problem, this Article analyzes the causes that give rise to false positives, as well as their legal and social effects, and offers policy recommendations targeted …

Plain Packaging And The Trips Agreement: A Response To Professors Davison, Mitchell And Voon, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The issue of plain packaging is at the very core of the intersection between trade law, intellectual property and public health. Unlike the issue of export of generic pharmaceuticals, which was addressed in the World Trade Organization by the adoption of a specific Declaration and notification system, it seems that plain packaging will be addressed by the WTO Dispute-Settlement Body. A report prepared by the author in 2010 discussing the intellectual property aspects of plain packaging was critiqued by Professors Davison, Mitchell and Voon in several publications and submissions, including a recent book. In this article, the author responds to …

Plain Packaging And The Interpretation Of The Trips Agreement, Daniel J. Gervais, Susy Frankel

Vanderbilt Law School Faculty Publications

Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging’s compatibility with the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).
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/="/">WTO members can validly take measures to protect and promote public health, but in doing …

Table Of Contents

Seattle Journal for Social Justice

No abstract provided.

Introduction, Jacqueline Mcmurtrie

Seattle Journal for Social Justice

No abstract provided.

Gideon At Fifty -- Golden Anniversary Or Mid Life Crisis, Kim Taylor-Thompson

Seattle Journal for Social Justice

No abstract provided.

Fifty Years After Gideon: It Is Long Past Time To Provide Lawyers For Misdemeanor Defendants Who Cannot Afford To Hire Their Own, Robert C. Boruchowitz

Seattle Journal for Social Justice

No abstract provided.

Gideon: Looking Backward, Looking Forward, Looking In The Mirror, Steven Zeidman

Seattle Journal for Social Justice

No abstract provided.

Legal Financial Obligations: Fulfilling The Promise Of Gideon By Reducing The Burden, Travis Stearns

Seattle Journal for Social Justice

No abstract provided.

Does The Right To Counsel On Appeal End As You Exit The Court Of Appeals?, Nancy P. Collins

Seattle Journal for Social Justice

No abstract provided.

Improving Access To Justice: Plain Language Family Law Court Forms In Washington State, Charles R. Dyer, Joan E. Fairbanks, M. Lynn Greiner, Kirsten Barron, Janet L. Skreen, Josefina Cerrillo-Ramirez, Andrew Lee, Bill Hinsee

Seattle Journal for Social Justice

No abstract provided.

Congress' Encroachment On The President's Power In Indian Law And Its Effect On Executive-Order Reservations, Mark R. Carter Jd, Phd

Seattle Journal for Social Justice

No abstract provided.

Confusion Isn't Everything, Mark P. Mckenna, William Mcgeveran

Journal Articles

The typical shorthand justification for trademark rights centers on avoiding consumer confusion. But in truth, this encapsulation mistakes a method for a purpose: confusion merely serves as an indicator of the underlying problems that trademark law seeks to prevent. Other areas of law accept confusion or mistake of all kinds, intervening only when those errors lead to more serious harms. Likewise, every theory of trademark rights considers confusion troubling solely because it threatens more fundamental values such as fair competition or informative communication. In other words, when it comes to the deep purposes of trademark law, confusion isn’t everything. Yet …

Tracing Forward And The Law: Navigating Privacy And Access Rules, Margaret Ann Wilkinson

Law Presentations

No abstract provided.

The Accidental Agency?, Sapna Kumar

Florida Law Review

This Article presents a new model for examining the role of the Court of Appeals for the Federal Circuit (Federal Circuit) with regard to patent law, positing that the Federal Circuit behaves like an agency and serves as the de facto administrator of the Patent Act. The Federal Circuit has traditionally engaged in a form of substantive rulemaking by issuing mandatory bright-line rules that bind the public. In reviewing patent agency appeals, the Federal Circuit acts more like an agency than a court by minimizing agency deference through the manipulation of standards of review and administrative law doctrines. This position …

Doma's Ghost And Copyright Reversionary Interests, Brad A. Greenberg

NULR Online

No abstract provided.

Intellectual Property Perspectives: Fall 2013, Ip Law Program

Intellectual Property Perspectives

No abstract provided.

Pretending Without A License: Intellectual Property And Gender Implications In Online Games, Casey Fiesler

Buffalo Intellectual Property Law Journal

No abstract provided.

Geolocation And Targeted Advertising: Making The Case For Heightened Protections To Address Growing Privacy Concerns, Ryan Mura

Buffalo Intellectual Property Law Journal

No abstract provided.

Coordinating Extensive Trademark Rights And Competition Policy, Kexin Li

Buffalo Intellectual Property Law Journal

A trademark can be not only a word or logo, but also a color, sound, three-dimensional object, and many other nontraditional items. Corporations are increasingly seeking nontraditional trademark protection instead of or in addition to traditional patents and/or copyrights. They are also enforcing both traditional and nontraditional marks more aggressively and in ways that may lead to significant foreclosure effects. This working paper argues that these trends may raise serious competition policy concerns that should play an important role in the evolution of trademark law. For instance, trademark registration and enforcement should be subject to the same antitrust constraints as …

The Confusion Trap: Rethinking Parody In Trademark Law, David A. Simon

Washington Law Review

This Article suggests using existing doctrinal levers in trademark law to accommodate parodies in a more balanced fashion. To reach this conclusion, this Article examines the parody doctrine in U.S. trademark law using two lenses. The first lens is trademark doctrine itself. Here I explore the various approaches courts use to resolve trademark disputes involving parody. The other lens is copyright law. Through this lens I examine how courts deciding trademark parody disputes employ the Supreme Court’s most recent decision on parody in copyright, Campbell v. Acuff-Rose Music, Inc. (1994). I also use this decision to examine the relationship …

Reverse Payments, Perverse Incentives, Murat C. Mungan

Scholarly Publications

No abstract provided.

Overlapping Intellectual Property Doctrines: Election Of Rights Versus Selection Of Remedies, Laura A. Heymann

Faculty Publications

Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.

When an overlap issue arises—that is, when an intellectual property rights holder asserts rights under more than one doctrine—the question then becomes how courts should respond. One response, of …

Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

A New Approach To Digital Reader Privacy; State Regulations And Their Protection Of Digital Book Data, Andrew A. Proia

Indiana Law Journal

No abstract provided.

Rethinking Redigi: How A Characteristics-Based Test Advances The "Digital First Sale" Doctrine Debate, Gregory Capobianco

Cardozo Law Review

No abstract provided.

Shaking Out The "Shakedowns": Pre-Discovery Dismissal Of Copyright Infringement Cases After Comparison Of The Works At Issue, Evan Brown

Washington Journal of Law, Technology & Arts

In an era of copyright trolling, digital distribution, and widespread reappropriation of creative works, the specter of “shakedown” copyright infringement litigation looms larger than ever before. Some plaintiffs will hold the prospect of expensive and time-consuming discovery over alleged infringers to provoke settlement. In the wake of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, courts are more likely to consider the costs and time requirements of discovery when considering a defendant’s 12(b)(6) motion to dismiss. Several courts have recently indicated a willingness to grant motions to dismiss in copyright infringement cases when …