Intellectual Property Law Commons^™

Ambush Marketing: The Off-Field Competition At The Olympic Games, Jason K. Schmitz

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Comparative Advertising In The United States And In France, Charlotte J. Romano

Northwestern Journal of International Law & Business

Comparative advertising has been widely used for over thirty years in the United States. By contrast, the use of this advertising format has traditionally been-and still is-very marginal in France. The term "comparative advertising" refers to any form of advertising in which a trademark owner draws a comparison between his product, service, or brand and that of a competitor. The central issue of this article is to determine why, despite identical guiding policies, comparative advertising remains unusual in France while it is commonplace in the United States. Attempting to answer that question unavoidably raises numerous related issues: can the two …

Is The Monopoly Theory Of Trademarks Robust Or A Bust?, Harold R. Weinberg

Law Faculty Scholarly Articles

The "monopoly theory of trademarks" would "antitrustize" trademark law by incorporating antitrust legal precedent, economics, policies, reasoning, and terminology. The theory is comprised of six interrelated postulates contained in trademark law and scholarship. The postulates are (1) trademarks are monopolies; (2) trademark monopolies are like illegal antitrust monopolies because both harm competition; (3) trademark law is like antitrust law because both value competition; (4) trademark law is like antitrust law because both apply economic methodology to product markets; (5) an antitrust lens can help one understand trademarks and trademark law; and (6) an antitrust lens can help one decide whether …

The Constitutional Failing Of The Anticybersquatting Act, Ned Snow

Faculty Publications

Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own …

When You Wish Upon Dastar: Creative Provenance And The Lanham Act, Mary Lafrance

Scholarly Works

This Article examines the application of section 43(a) of the Lanham Act to claims of reverse passing off through the lens of the Supreme Court's unpersuasive effort in Dastar Corp. v. Twentieth Century Fox Film Corp. to exclude a single class of reverse passing off-claims - those involving “expressive” works as opposed to physical commodities - from the scope of section 43(a). The Article critiques the Court's analysis of section 43(a) in light of case law and the pertinent legislative history, including, the Trademark Law Revision Act of 1988, the Berne Convention Implementation Act of 1988, and the Visual Artists …

Making A Mark In The Internet Economy: A Trademark Analysis Of Search Engine Advertising, Mark Bartholomew

Oklahoma Law Review

No abstract provided.

The Right Of Publicity And Autonomous Self-Definition, Mark P. Mckenna

Journal Articles

Legal protection against unauthorized commercial uses of an individual's identity has grown significantly over the last fifty years as it has relentlessly pursued economic value. It was forced to focus on value because a false distinction between the harms suffered by private citizens and celebrities seemingly left celebrities without a privacy claim for commercial use of their identities. But the normative case for awarding individuals the economic value of their identity is weak, since celebrities do not need additional incentive to invest in either their native skill or in developing a persona. Still, while the prevailing justification is inadequate, as …

Indigenous Peoples And Intellectual Property, Stephen M. Mcjohn, Lorie Graham

Suffolk University Law School Faculty Works

This paper, following on Michael F. Brown's Who Owns Native Culture?, suggests that intellectual property law, negotiation, and human rights precepts can work together to address indigenous claims to heritage protection. Granting intellectual property rights in such spheres as traditional knowledge and folklore does not threaten the public domain in the same way that expansion of intellectual property rights in more commercial spheres does. It is not so much a question of the public domain versus corporate and indigenous interests, as it is a question of the impact corporate interests have had on the indigenous claims. Indeed indigenous peoples' claims …

Trademark Law And The Social Construction Of Trust: Creating The Legal Framework For On-Line Identity, Beth Simone Noveck

Articles & Chapters

Trust is the foundation of society for without trust, we cannot cooperate. Trust, in turn, depends upon secure, reliable, and persistent identity. Cyberspace is thought to challenge our ability to build trust because the medium undermines the connection between online pseudonym and offline identity. We have no assurances of who stands behind an online avatar; it may be one person, it may be more, it may be a computer. The legal debate to date has focused exclusively on the question of how to maintain real world identity in cyberspace. But new "social software" technology that enables communities from eBay to …

Why Intellectual Property Belongs In The First-Year Property Course, Roberta Rosenthal Kwall

Journal of Legal Education

No abstract provided.

The Impact Of Pro-Football Inc. V. Harjo On Trademark Protection Of Other Marks, Rachel Clark Hughey

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Trademark Jurisprudence Of The Rehnquist Court, Graeme B. Dinwoodie

Marquette Intellectual Property Law Review

Professor Dinwoodie discusses the Rehnquist Supreme Court and its current approach to addressing trademark jurisprudence. Professor Dinwoodie concludes that although the Court has not employed a consistent methodological approach to resolving trademark problems, the opinions do suggest that there are certain values that dictate the outcomes in trademark cases before the Rehnquist Court.

What Are You Looking At? Eliminating Consideration Of The General Public And The Ultimate Question In A Trade Dress Initial Interest Confusion Analysis., Paul J. Krause

Marquette Intellectual Property Law Review

This comment addresses the concept of initial interest confusion in trade dress law and examines several different courts' approaches to the doctrine. Through the discussion, it becomes evident that while being careful to avoid bypassing an analysis of the likelihood of confusion factors, courts should also use the doctrine to determine confusion of potential purchasers. Failing to account for certain factors, such as the sophistication of the relevant consumer group, may allow courts to skew the likelihood of confusion factors in an initial interest confusion analysis. In sum, the author argues that courts should conduct a thorough analysis of likelihood …

Vol. Ix, Tab 41 - Ex 6 - Google Three Ad Policy Changes, Google

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Genericness Doctrine Need Not Apply: Employing Generic Domain Names In Cyberspace., C. Kim Lee

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Market Definition In Intellectual Property Law: Should Intellectual Property Courts Use An Antitrust Approach To Market Definition?, Anna F. Kingsbury

Marquette Intellectual Property Law Review

In her Article, Ms. Kingsbury notes that American courts do not use antitrust law's market definition approach in intellectual property cases. She discusses five potential rationales for this dichotomy: (1) intellectual property cases involve new products without defined markets; (2) market definition limits judicial flexibility; (3) courts do not want to burden intellectual property litigants with the time and expense of economic evidence; (4) judges reason from precedent, and that precedent did not consider market definition; and (5) "market" conveys a different meaning in intellectual property law than it does in antitrust law. Kingsbury presents counterarguments to these rationales and …

Panel I: Trademark Dilution: Moseley And Beyond., Ceceelia Dempsy, Marie Driscoll, Hugh C. Hansen, Susan Progoff

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Protection For Indigenous Peoples And Their Traditional Knowledge: Would A Registry System Reduce The Misappropriation Of Traditional Knowledge?, Thomas J, Krumenacher

Marquette Intellectual Property Law Review

This Comment examines the controversy over whether a registry system is the best way to prevent Western inventors from obtaining intellectual property protection for traditional knowledge that has been misappropriated from underdeveloped parts of the world. This dilemma exists because traditional knowledge often constitutes patentable subject matter, most indigenous peoples do not subscribe to a Western "property rights" view of the world, and exploitation of traditional knowledge has become easier through improved communication capabilities. This Comment argues in favor of a registry system to catalog traditional knowledge; patent examiners would deny patent protection to any invention that replicates traditional knowledge. …

Trade Dress: Should Only The Secondary Meaning Trade Dress Standard Apply To Product Packaging? Or Should Courts Continue To Use The Inherently Distinctive Standard?, Jennifer L. Barwinski

Marquette Intellectual Property Law Review

This Comment discusses the controversy over whether secondary meaning should be a prerequisite for trademark protection of product packaging, in light of Wal-Mart Stores, Inc. v. Samara Bros. The United States Supreme Court held in Wal-Mart that secondary meaning is a prerequisite for trademark protection of product design, limiting its earlier decision in Two Pesos, Inc. v. Taco Cabana, Inc. In discussing Wal-Mart's application to trademark protection for product packaging, this Comment focuses on the difficulty of distinguishing between product packaging and product design. This Comment argues that secondary meaning should be a prerequisite for trademark protection of product packaging; …

Plus Ça Change. . . . How A French Court May Have Changed Internet Advertising Forever: Google France Fined For Selling Trademarked "Keywords", Brett August

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

An Efficient Way To Improve Patent Quality For Plant Varieties, Katherine E. White

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Community Trademark System: A Brief Introduction And Overview, Vincent O'Reilly

Marquette Intellectual Property Law Review

Mr. O'Reilly discusses several different aspects of the trademark system in the European Community. The following subjects are included in his survey: (1) application; (2) opposition; (3) cancellation; (4) appeals; and (5) enforcement. Though formal and procedural requirements dominate this discussion, O'Reilly also discusses how these requirements have been applied and how traditional trademark issues have been resolved with regard to particular trademarks. He also discusses how the Community Trademark System interacts with the preexisting national trademark systems.

Nationalizing Trademarks: A New International Trademark Jurisprudence?, Xuan-Thao Nguyen

Articles

A new international trademark jurisprudence is currently in formation that has negative impact on international trade. Indeed, this new trademark jurisprudence includes the recent phenomenon of states monopolizing the use of generic names through the elevation of such names to trademarks of national stature and the rise of global recognition and registration of geographic indication status for generic names. Professor Nguyen identifies and analyzes the new trademark jurisprudence, and critiques its impact on international trade relations and language propertization. Professor Nguyen proposes a certification mark regime to end the expansion of generic name protection and to promote fair competition.

Bankrupting Trademarks, Xuan-Thao Nguyen

Articles

The explosive growth of technology in the last two decades has vastly expanded intellectual property jurisprudence and elevated intellectual property to a heightened status in the marketplace. Indeed, a company's intellectual property assets may now be its most valuable corporate assets. Moreover, the property value of some trademarks is significantly greater than that of the trademark owner's physical assets.

The term “intellectual property” is commonly understood to include patents, trade secrets, copyrights, and trademarks. Yet a paradigm has been constructed and enforced over the last fifteen years wherein only patents, trade secrets, and copyrights are included. The paradigm specifically excludes …

A Barcelona.Com Analysis: Toward A Better Model For Adjudication Of International Domain Name Disputes, Zohar Efroni

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Rethinking Reexamination Reform: Is It Time For Corrective Surgery, Or Is It Time To Amputate?, Kristn Jakobsen Osenga

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

I Didn't Take The Road Less Traveled, And What A Long, Strange Trip It's Been, Brian A. Glassman

Journal of Legal Education

No abstract provided.

Victor’S Little Secret: Supreme Court Decision Means More Protection For Trademark Parody, Jordan M. Blanke

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman

San Diego International Law Journal

This Comment will examine the similarities and differences between the trademark protection laws with regard to the multi-cultural nature of the consuming public of the European Union and that of the United States, and then will recommend ways in which the laws can be harmonized to promote the congruent development and expansion of economic activities globally. This harmonization is necessary in light of the interplay between these schemes for protection of marks and the protection provided under the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks, and the Madrid Protocol. The …

Promoting Intellectual Property For Economic Growth, Rita Hayes

Vanderbilt Journal of Transnational Law

The World Intellectual Property Organization, based in Geneva, is a specialized agency of the United Nations that deals with international intellectual property matters. The Organization is perhaps best known for international agreements such as the Patent Cooperation Treaty (the PCT), The Madrid Agreement, and the Hague Agreement, which provide international registration and protection for patents, trademarks, and industrial designs, respectively.

The Organization's work in standard setting--through the development of international intellectual property law--covers the range of intellectual property from industrial property to copyright. Many of you are familiar with the WIPO Internet Treaties, two international treaties that came into force …