Intellectual Property Law Commons^™

Vara’S Orphans: How Indigenous Artists Can Still Look For Hope In The Moral Rights Regime, Amy Skelton

Indiana Journal of Law and Social Equality

No abstract provided.

Reexamining Two Pesos, Qualitex, & Wal-Mart: A Different Approach…Or Perhaps Just Old Abercrombie Wine In A New Bottle?, Russ Versteeg

Fordham Intellectual Property, Media and Entertainment Law Journal

In Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000), the United States Supreme Court held that, in order for a product design to be protectable under § 43(a) of the Lanham Act, the product design must first acquire a secondary meaning. Writing for the Court, Justice Scalia, reasoned that consumers, as a rule, do not expect a product’s design to serve as an indicator of source. The Court stated that product designs, like colors, do not ordinarily operate as source indicators, and that is why the Court established its rule that a product design must acquire a …

Access Denied: How Social Media Accounts Fall Outside The Scope Of Intellectual Property Law And Into The Realm Of The Computer Fraud And Abuse Act, Tiffany Miao

Fordham Intellectual Property, Media and Entertainment Law Journal

This note addresses the challenge of applying intellectual property laws to determining ownership rights over social media accounts, specifically in the employer and employee context. This note suggests that IP regimes, namely Trademark, Copyright,and Trade Secrets, fail to provide an adequate framework for determining such ownership rights. Instead, this note proposes that the Computer Fraud and Abuse Act serves as a more appropriate legal framework.

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 …

Intellectual Property And Employee Selection, Elizabeth A. Rowe

UF Law Faculty Publications

In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should …

The Granting Clause And Intellectual Property Rights Management In Open-Source Software Licensing, Vikrant N. Vasudeva

IP Theory

No abstract provided.

Goodwill U: School Name Change & Trademark Law, Alexandra J. Roberts

IP Theory

No abstract provided.

Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble

Scholarly Works

The reviewer considers a recent book by Alexander Peukert, the professor of civil and commercial law who specializes in international intellectual property law at Goethe University in Frankfurt am Main, Germany. Peukert has devoted the book to defining the limits of the public domain – the realm of intellectual activity in which works are free for anyone to use because the works are not protected by intellectual property rights, are protected but the protection has expired, are subject to an exception to the rights under the law, or are unprotected because the owner of the rights chooses not to enforce …

Fashion And U.S. Ip Law, Marketa Trimble

Boyd Briefs / Road Scholars

No abstract provided.

Internet Outlaws: Knowingly Placing Ads On Parked Domain Names Invokes Contributory Trademark Liability, Ariane C. Strombom

Marquette Intellectual Property Law Review

None.

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

Articles by Maurer Faculty

No abstract provided.

A Trademark Justification For Design Patent Rights, Dennis D. Crouch

Faculty Publications

This article presents a new set of empirical results to support the theoretical construct that design patents fill a gap in trade dress law protection. Based on the data, I tentatively reject the oft-stated conventional wisdom that design patents are worthless for many because procurement is too slow, expensive, and difficult. Rather, based on a first-of-its-kind analysis of the prosecution history files of a large sample of recently issued design patents, I conclude that the current design patent examination system operates as a de facto registration system. Notably, more than ninety-eight percent (98%) of the patents in my study were …

Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie And Exceptions, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards …

An Intersystemic View Of Intellectual Property And Free Speech, Mark Bartholomew, John Tehranian

Journal Articles

Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, …

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

Vanderbilt Journal of Transnational Law

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).

WTO members can validly take measures to protect and promote public health, but in doing so they …

The Look For Less: A Survey Of Intellectual Property Protections In The Fashion Industry, Nicole Giambarrese

Touro Law Review

Currently, there are no copyright protections for fashion designs in the United States. Proposed legislation that would provide such protection has been sitting in Congress for two years. Further, the Lanham Trademark Act only protects the origin of products, such as logos and trademarks. Even with the current available trademark protection, fashion houses, such as Louis Vuitton, and luxury jewelry firms, such as Tiffany & Company, have seen the Second Circuit make it more difficult to assert the protection. This increasing difficulty is due to a fear of overextending monopolies and taking an affirmative stance on who has the burden …

Fun & Profit: When Commercial Parodies Constitute Copyright Or Trademark Infringement, Tammi A. Gauthier

Pepperdine Law Review

No abstract provided.

An Economic View Of Innovation And Property Right Protection In The Expanded Regulatory State, J. Miles Hanisee

Pepperdine Law Review

No abstract provided.

Internet-Based Fans: Why The Entertainment Industries Cannot Depend On Traditional Copyright Protections , Thomas C. Inkel

Pepperdine Law Review

No abstract provided.

Ip Protection Of Fashion Design: To Be Or Not To Be, That Is The Question, Xinbo Li

IP Theory

No abstract provided.

Newman, J., Dissenting: Another Vision Of The Federal Circuit, Blake R. Hartz

IP Theory

No abstract provided.

If It's Not Ripped, Why Sew It? An Analysis Of Why Enhanced Intellectual Property Protection For Fashion Design Is In Poor Taste, Kari Heyison

Touro Law Review

No abstract provided.

Imitation Is The Sincerest Form Of Flattery, But Is It Infringement? The Law Of Tribute Bands, Michael S. Newman

Touro Law Review

No abstract provided.

Top 1% Files For Trademark Of “Occupy Wall Street”, Seth Dennis

Intellectual Property Brief

No abstract provided.

The New Hawaiian Model: The Native Hawaiian Cultural Trademark Movement And The Quest For Intellectual Property Rights To Protect And Preserve Native Hawaiian Culture, Nina Mantilla

Intellectual Property Brief

No abstract provided.

Capturing Clouds: Intellectual Property Issues Within The Live Entertainment Production Process, Brian Knowlton

Intellectual Property Brief

No abstract provided.

Combating Online Trademark And Copyright Infringement: Ice And Doj Domain Name Seizures New Tools In The Government’S Efforts To Combat Online Ip Infringement, Tanya Dunbar

Pace Intellectual Property, Sports & Entertainment Law Forum

The ICE seizures and proposed legislations to codify ICE-style seizures have led many to question the legitimacy of ICE’s seizures and decry the bills as censorship. Tanya Dunbar’s article explores the reasons for the government’s actions, the seizure mechanism the government employs, and the controversy surrounding domain name seizures. Where possible, the Ms. Dunbar offers solutions to some of the controversial issues that may arise.

Best Buy Vs. Newegg: Who Owns “Geek”?, Seth Dennis

Intellectual Property Brief

No abstract provided.

Taking A Bite Out Of The Apple: “Appstore” Trademark Infringement Update, Amer Raja

Intellectual Property Brief

No abstract provided.

International Trademark Protection And Global Public Health: A Just-Compensation Regime For Expropriations And Regulatory Takings, Sam F. Halabi

Faculty Publications

Lawmakers in developed and developing countries are expanding legal protections for trademarks – words, combinations of colors, signs, letters, numerals, figurative elements and designs meant to convey the origin and quality of firms’ goods or services. The purported rationales underlying trademark protection are promotion of competition and reduction of consumers’ information costs. Trademark law promotes competition by giving trademark holders an incentive to invest in the quality of goods or services and then associate that quality with a relatively easy-to-identify brand, mark or logo. The law punishes private actors who attempt to free-ride on the goodwill built by the trademark …