Marketing Law Commons^™

Gone In Sixty Milliseconds: Trademark Law And Cognitive Science, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that "Kodak soap" was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark. Trademark owners think dilution is harmful but have had difficulty explaining why. Many courts have therefore been reluctant to enforce dilution laws, even while legislatures have enacted more of them over the past half century. Courts and commentators have now begun to use psychological theories, drawing on associationist models of cognition, to …

It Depends On What The Meaning Of "False" Is: Falsity And Misleadingness In Commercial Speech Doctrine, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

While scholarship regarding the Supreme Court's noncommercial speech doctrine has often focused on the level of protection for truthful, non-misleading commercial speech, scholars have paid little attention to the exclusion of false or misleading commercial speech from all First Amendment protection. Examining the underpinnings of the false and misleading speech exclusion illuminates the practical difficulties that abolishing the commercial speech doctrine would pose. Through a series of fact patterns in trademark and false advertising cases, this piece demonstrates that defining what is false or misleading is often debatable. If commercial speech were given First Amendment protection, consumer protection and First …

Accidental Rights, James Gibson

Law Faculty Publications

Written for the Yale Law Journal's online Pocket Part, this is a much shorter and (I hope) more accessible iteration of my earlier paper, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). It summarizes that paper's central point - i.e., that intellectual property entitlements are growing not just because of expansive court decisions and legislative enactments, but also because of seemingly sensible, risk-averse licensing decisions that inadvertently feed back into legal doctrine - and then explores how this phenomenon might apply to (and be manipulated by) enterprises such as Google Book Search.

Metabranding And Intermediation: A Response To Professor Fleischer, Laura A. Heymann

Faculty Publications

No abstract provided.

Intellectual Property Rights In Advertising, Lisa P. Ramsey

Michigan Telecommunications & Technology Law Review

Before the twentieth century, U.S. courts refused to protect copyright in advertisements. Until the middle of the twentieth century, advertising slogans generally were not registered or protected under U.S. trademark law. Today, firms can acquire copyright protection in advertising and there is no categorical rule against trademark registration or protection of slogans. This Article questions whether this extension of copyright protection to advertising and trademark protection to slogans has a satisfactory utilitarian justification[...] If it is too difficult to completely eliminate copyright protection of advertising, Congress should at least consider reducing such protection to increase the free flow of advertising …

Why Are Competitor's Advertising Links Displayed When I Google My Product? An Analysis Of Internet Search Engine Liability For Trademark Infringement, 5 J. Marshall Rev. Intell. Prop. L. 431 (2006), Isaiah A. Fishman

UIC Review of Intellectual Property Law

Traditional federal trademark law is being challenged in the current case of Google v. AmericanBlind. When internet issues clash with trademark infringement, courts are often faced with the dangerous task of either refusing to stretch not specifically internet tailored trademark law to grant remedy to a perceived wrong or refusing to grant remedy because of the chilling effect the remedy may have on traditional trademark. By analyzing the history of trademark law in relation with internet issues, focusing on domain name cases, pop-up advertising cases, and search engine cases, it becomes clear that specific congressional action is the most viable …

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Search And Persuasion In Trademark Law, Barton Beebe

Michigan Law Review

The consumer, we are led to believe, is the measure of all things in trademark law. Trademarks exist only to the extent that consumers perceive them as designations of source. Infringement occurs only to the extent that consumers perceive one trademark as referring to the source of another. The most "intellectual" of the intellectual properties, trademarks are a property purely of consumers' minds. The simple idealist ontology underlying trademark law is largely responsible for the law's characteristic instability. Since 1992, the Supreme Court has considered - and in some cases, reconsidered - seven trademark cases. The Court's copyright cases garner …

Regulating The Regulators: The Impact Of Fda Regulation On Corporations' First Amendment Rights, 39 J. Marshall L. Rev. 95 (2005), Lisa M. Fealk-Stickler

UIC Law Review

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 …

"Don't Let The Sun Go Down On Me:" An In-Depth Look At Opportunistic Business Method Patent Licensing And A Proposed Solution To Allow Small-Defendant Business Method Users To Sing A Happier Tune, 37 J. Marshall L. Rev. 1359 (2004), Andrea Lynn Evensen

UIC Law Review

No abstract provided.

Balancing Individual Privacy Rights And The Rights Of Trademark Owners In Access To The Whois, 38 J. Marshall L. Rev. 357 (2004), Jeffrey Stephen Sobek

UIC Law Review

No abstract provided.

Consolidating The Diffuse Paths To Trade Dress Functionality: Encountering Traffix On The Way To Sears, Margreth Barrett

Washington and Lee Law Review

No abstract provided.

Are You Content With The Content? Intellectual Property Implications Of Weblog Publishing, 21 J. Marshall J. Computer & Info. L. 439 (2003), Attiya Malik

UIC John Marshall Journal of Information Technology & Privacy Law

The publicity about weblogs has neglected to warn against the risks of legal liability. Whether you want to impart words of wisdom or copy something that caught your interest, the temptation to "borrow" is too great and too easy in Cyberspace. Whereas the typical Internet user may have heard of "copyright" or "trademark," they are unaware of the complexities and nuances of these areas of law. The legal tests and standards may be too sophisticated for the average user. Even practitioners and courts are grappling with what legal standards and interpretations are to be applied in Cyberspace, thus, leading to …

Prospecting Or Cybersquatting: Registering Your Name Before Someone Else Does, 35 J. Marshall L. Rev. 287 (2002), Benjamin B. Cotton

UIC Law Review

No abstract provided.

End Game: Ex Parte Seizure Process And The Battle Against Bootleggers, Lucas G. Paglia, Mark A. Rush

Vanderbilt Journal of Entertainment & Technology Law

This Article presents a broad overview of the exparte seizure process, what it is and how it can be deployed by trademark owners to shut down counterfeiters. It first discusses the general structure and mechanics of the TCA. It then proceeds to discuss some important areas of practical concern with respect to proceedings under the Act. The Article concludes by providing a hypothetical case study of the ex parte seizure process in action.

Trademark Product Appearance Features, United States And Foreign Protection Evolution: A Need For Clarification And Harmonization, 34 J. Marshall L. Rev. 947 (2001), William T. Fryer Iii

UIC Law Review

No abstract provided.

Electronic Billboards Along The Information Superhighway: Liability Under The Lanham Act For Using Trademarks To Key Internet Banner Ads, Christine Galbraith Davik

Faculty Publications

With almost one billion web pages on the Internet today, a search engine is a necessity at times. But search engines are also for-profit ventures and the financial success of these sites hinges on advertising revenue. One of the ways in which these sites generate income is by selling “keywords” to advertisers. Although there has been only one judicial decision – Playboy Enterprises, Inc. v. Netscape Communications – involving banner ads keyed to trademarks, it will undoubtedly not be the last. This article argues that despite the invisible nature of this unauthorized trademark use, the common practice of keying a …

Classic Films And Historic Landmarks: Protecting America's Film Heritage From Digital Alteration, 33 J. Marshall L. Rev. 185 (1999), Helen K. Gieb

UIC Law Review

No abstract provided.

Issue 51 - December 15, 1998, Benjamin N. Cardozo School Of Law

Post-Soviet Media Law & Policy Newsletter

Inside:

Signs of the Times

Russia

Crisis of ORT, page 1

News from the Duma, page 5

Communists Call for Control of Media, page 7

Election News, page 12

News on VGTRK, page 13

Other Media News, page 17

Azerbaijan, page 20

Belarus, page 22

Estonia, page 22

Moldova, page 22

Ukraine, page 23

Albania, page 24

Bulgaria, page 25

Hungary, page 25

Poland, page 26

Slovakia, page 27

Yugoslavia and Former Yugoslavia:

Bosnia-Herzegovina, page 29

Macedonia, page 33

Montenegro, page 33

Serbia, page 34

Slovenia, page 36

Law of Kyrgyz Republic on Mass Media, page 37

Queries and …

Issue 50 - November 1, 1998, Benjamin N. Cardozo School Of Law

Post-Soviet Media Law & Policy Newsletter

Inside:

Signs of the Times

Russia

Media Tax Concessions Law, page 1

Proposed Amendments to Mass Media Law, page 3

News on ORT, page 4

VGTRK Supervisory Council, page 8

Other Media News, page 10

Armenia, page 12

Latvia, page 12

Tajikistan, page 12

Turkmenistan, page 13

Ukraine, page 13

Albania, page 14

Hungary, page 16

Slovakia, page 18

Yugoslavia and Former Yugoslavia

Croatia: New Laws on HRT, page 19

Serbia / Montenegro

New Serbian Information Law, page 22

Montenegro's Reaction to New Serbian Media Law, page 29

Other Media News, page 30

Analysis of the Azerbaijani "Laws on Mass …

Issue 48-49 - September 15, 1998, Benjamin N. Cardozo School Of Law

Post-Soviet Media Law & Policy Newsletter

Inside:

Signs of the Times

Russia

Reorganization of VGTRK, page 1

Crackdown on Piracy, page 9

Other Media News, page 10

Chechnya, page 13

Estonia, page 15

Kazakhstan, page 16

Tajikistan, page 16

Ukraine, page 16

Uzbekistan, page 16

Bulgaria, page 17

Hungary, page 19

Slovakia

TV Markiza, page 19

Slovak TV's Closure of Hungarian Service, page 21

Other Media News, page 22

Yugoslavia and Former Yugoslavia

Bosnia-Herzegovina

Suspension and Relocation of SRNA, page 23

Croatian TV, page 24

Other Media News, page 30

Serbia, 32

Decree on payment for use of radio frequencies, page 33

Structural Reconstruction of …

Who Owns The Web Site?: The Ultimate Question When A Hiring Party Has A Falling-Out With The Web Site Designer, 16 J. Marshall J. Computer & Info. L. 857 (1998), Rinaldo Del Gallo Iii

UIC John Marshall Journal of Information Technology & Privacy Law

The question is "Who owns your web site?" This question is difficult to answer absent a copyright assignment clause since no one knows who the owner of the web site is under current law. There are several problems that occur when a web designer is placed in a position against the hiring party in determining ownership rights to a web site. It is important to distinguish ownership rights to a web site, since most contractual agreements between a web site designer and a hiring party do not address this issue. Every day, hundreds of new web sites are appearing and …

Language Of The Law: The Special Role And Trademarks, Trade Names, And Other Trade Emblems., John T. Cross

Faculty and Staff Scholarship

In 1979, the United States Supreme Court decided Friedman v. Rogers, a case involving a First Amendment challenge to a Texas statute that prohibited optometrists from practicing under an assumed trade name. Although an important case, Friedman certainly is not one of the major milestones of First Amendment jurisprudence. Prior Supreme Court decisions established that although commercial speech is protected by the First Amendment, government may regulate speech to prevent deception or confusion. Because a majority in Friedman found a possibility of deception, the Court held that Texas could constitutionally prohibit the use of a trade name. Friedman becomes much …

Frontier Issues: Pitfalls In Developing And Marketing Multimedia Products, Michael D. Scott

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Digital Sound Sampling And A Federal Right Of Publicity: Is It Live Or Is It Macintosh?, 10 Computer L.J. 365 (1990), Tamara J. Byram

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Celebrity Endorsement: Recognition Of A Duty, 21 J. Marshall L. Rev. 47 (1987), Jay S. Kogan

UIC Law Review

No abstract provided.

Registered Trademark Marking Requirements, Cameron K. Wehringer

Cleveland State Law Review

The ® symbol is at times rarely used,sometimes moderately used, and sometimes perhaps over-used.Two major questions then. What is the necessary use, and what is the situation as to prevailing use?