Intellectual Property Law Commons^™

The Infringement-Plus-Equity Model: A Better Way To Award Monetary Relief In Trademark Cases, David S. Almeling

Georgia Journal of Law & Technology

No abstract provided.

State Regulation Of Keyword Advertising: A Lesson From The Utah Legislature, Mary Candice Barrett

Georgia Journal of Law & Technology

No abstract provided.

What's The Deference?: Should Dickinson V. Zurko Apply In The Trademark Context?, Jonathan S. Digby

Georgia Journal of Law & Technology

No abstract provided.

Navigating The Legal Landscape Of A Subversive Art Form: Protecting Expression And Neglecting Embodiment, Dillon Henry Stern

Chicago-Kent Journal of Intellectual Property

No abstract provided.

An Alternate Functionality Reality, Harold R. Weinberg

Georgia Journal of Law & Technology

The Supreme Court last addressed trade dress law’s functionality doctrine in TrafFix Devices, Inc. v. Marketing Displays, Inc. decided in 2001. This article applies content analysis to data from post-TrafFix functionality cases to provide insights concerning the functionality doctrine. It emphasizes data from cases concerning motions for summary judgment and preliminary injunction. The analysis employs two conceptual constructs: a “useful/aesthetic continuum” and “mixed-character” design features. The article also considers data in light of a “two-bar mandate” and two principles: “useful-scarcity” and “aesthetic-abundance.” It concludes with observations concerning the post-TrafFix functionality doctrine and suggestions for improving its judicial …

Confusion Codified: Why Trademark Remedies Make No Sense, Mark A. Thurmon

Georgia Journal of Law & Technology

No abstract provided.

Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna

Court Briefs

No. 15-14889
Edward Lewis Tobinick v. Steven Novella

Appeal from the United States Distric Court for the Southern District of Florida, Case No.: 9:14-cv-80781-RLR (Hon. Robin L. Rosenber)
[Including the] Motion for Leave to File Brief of Amici Curiae Intellectual Property Law Professors, Nov. 30, 2015.

From the Summary of Argument

The District Court correctly determined that the challenged speech of Dr. Steven Novella was not commercial speech for purposes of applying the Lanham Act. Appellant’s argument to the contrary conflates “seeking profit” with “commercial speech.”

Trademark’S Ebay Problem, Peter J. Karol

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article addresses the current debate over whether to extend, to trademark law, the rule in eBay, Inc. v. MercExchange, L.L.C. denying prevailing patent plaintiffs presumptive entitlement to injunctive relief. Its central concern, however, is not whether or how eBay should apply to trademark law, but rather the way in which the debate resurfaces structural flaws undermining foundational provisions of the Lanham Act. Namely, the Act purports to grant ex ante exclusive rights to mark owners against all confusingly similar uses, but then reserves discretion to district courts to deny statutory injunctive relief without further guidance. This ambiguity, a familiar …

Sine Qua Non: Trademark Infringement, Likelihood Of Confusion, And The Business Of Collegiate Licensing, C. Knox Withers

Georgia Journal of Law & Technology

No abstract provided.

"Every Artist Is A Cannibal, Every Poet Is A Thief": Why The Supreme Court Was Right To Reverse The Ninth Circuit In Dastar Corp. V. Twentieth Century Fox Film Corp., Joshua K. Simko

Georgia Journal of Law & Technology

No abstract provided.

"What's Really In The Package Of A Naming Rights Deal?" Service Mark Rights And The Naming Rights Of Professional Sports Stadiums, Christian Maximilian Voigt

Georgia Journal of Law & Technology

No abstract provided.

Does The Lanham Act Lose Meaning For Companies That Operate Exclusively Over The Internet?, Sheila D. Rizzo

Georgia Journal of Law & Technology

This Note will examine the differences between trademark registration and domain name registration, focusing specifically on the terms an applicant may register, the rights associated with those registrations, and the manner in which a registrant may lose, assign, and enforce those rights so that others my not use the same registered terms. This Note will also suggest that a company operating exclusively over the internet may obtain greater rights, and therefore protection, than a typical bricks and mortar company, simply by registering its domain name, and not trademark status.

Phantom Trademarks: Good Law Or Chain Rattling? The Negative Effects Of Strict Interpretation Of The Lanham Act In The International Flavors And Fragrances Decision, James E. Carlson

Georgia Journal of Law & Technology

No abstract provided.

The Trend Towards Enhancing Trademark Owners' Rights-A Comparative Study Of U.S. And German Trademark Law, Rudolf Rayle

Georgia Journal of Law & Technology

No abstract provided.

Exceptionally Vague: Attorney Fee Shifting Under The Lanham Act, Kelsie Willett

Georgia Journal of Law & Technology

No abstract provided.

Does The Bad Faith Requirement In Accounting Of Profits Damages Make Economic Sense?, Eugene W. Luciani

Georgia Journal of Law & Technology

No abstract provided.

1-800-I-Am-Vain: Should Telephone Mnemonics Be Protected As Trademarks?, Elizabeth A. Horky

Georgia Journal of Law & Technology

No abstract provided.

State Anti-Dilution Statutes Under The Pre-Emption Analyses Of Gade V. National Solid Wastes Management Ass'n, George G. Boyd Jr.

Georgia Journal of Law & Technology

No abstract provided.

Dilution, An Idea Whose Time Has Gone; Brand Equity As Protectable Property, The New/Old Paradigm, Jerre B. Swann, Theodore H. Davis Jr.

Georgia Journal of Law & Technology

No abstract provided.

Federal Trademark Remedies: A Proposal For Reform, Mark A. Thurmon

Akron Intellectual Property Journal

It is time to take this problem seriously and reform the remedial rules of the Lanham Act. This article presents a specific proposal for reform that includes the following key changes:

• statutory damages are available as an alternative to actual damages, and this new remedy is available to prevailing trademark owners in all actions under the Lanham Act;
• the defendant's profits remedy is limited to those profits attributable to the infringement, but this remedy is available to prevailing trademark owners in all actions under the Lanham Act (i.e., proof of willful infringement or some other type of bad faith is …

Crossing The Line: The Collegiate Licensing Company's Overindulgent Attempt To Limit Small Businesses' Online Marketing Techniques Based On Frivolous Claims Of Trademark Infringement, Lauren T. Warbington

Georgia Journal of Law & Technology

No abstract provided.

Passing The Virtual Buck: How The Ninth Circuit Used Contributory Trademark Law To Expand Liability For Web Hosts, Alessandra Backus

Georgia Journal of Law & Technology

No abstract provided.

Dastar's Next Stand, Mark P. Mckenna

Georgia Journal of Law & Technology

No abstract provided.

"Leave Little Guys Alone!": Protecting Small Businesses From Overly Litigious Corporations And Trademark Infringement Suits, Sara Marie Andrzejewski

Georgia Journal of Law & Technology

No abstract provided.

Collecting Attorneys' Fees Under The Lanham Act: The Shifting Definition Of An "Exceptional Case", Kevin R. Miller, Brian M. Block

Seton Hall Circuit Review

No abstract provided.

A "Sunbeam" Of Hope: The Seventh Circuit's Solution Overcoming Disparaging Treatment To Trademark Licenses Under The Bankruptcy Code, Jarrod N. Cone

Georgia Journal of Law & Technology

No abstract provided.

Trademark's Ebay Problem, Peter J. Karol

Law Faculty Scholarship

This article explores the upheaval created within trademark law by eBay, Inc. v. MercExchange, L.L.C., asking why a simple doctrinal question (Should a patent remedies rule be extended to trademark cases?) has posed such problems for the courts. After a thorough review of past and present trademark injunction practice, and the Lanham Act’s legislative history, it finds that trademark law’s inability to assimilate eBay stems from unresolved substantive conflicts in the underlying legislation itself. In short, because the drafters could not settle on the proper scope of a federal trademark right, they hedged by granting a national exclusive right limited …

Recent Trends In The Use Of Surveys In Advertising Law Disputes; An Update On The Case Law, Kenneth Plevan

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Wiggle Room: Problems And Virtues Of The Inwood Standard, Rian C. Dawson

Indiana Law Journal

This Note investigates the origins of Inwood that led to the slim opinion with wide influence. It argues that the very vagueness for which scholars and practitioners have decried Inwood is the case's greatest virtue: Inwood provides a flexible standard that has allowed the common law to evolve and address new business models. Part I discusses the origins of contributory infringement in intellectual property. Part II investigates the Inwood case and the climate of trademark law at the time Inwood was litigated. It also dissects the majority opinion and Justice White's concurrance. Part III examines the Inwood standard's evolution at …

Fashion Forward: The Need For A Proactive Approach To The Counterfeit Epidemic, Casey Tripoli

Brooklyn Journal of International Law

In the last two decades, the overall activity of the counterfeit market has expanded and risen 10,000 percent. This dramatic shift corresponds to growth of the Internet, which has unified the fascination of obtaining cheap, illegitimate goods with the efficiency of a mouse click. With the expected continued inflation of the counterfeit market comes a host of new concerns, namely, how to determine who is responsible for the distribution of these knockoffs, and who should be ordained to limit them in the marketplace. In both the United States and the European Union, however, outdated laws produce a mélange of inadequate …