Marketing Law Commons^™

You Look Complicated Today: Representing An Illegal Graffiti Artist In A Copyright Infringement Case Against A Major International Retailer, John Eric Seay

Journal of Intellectual Property Law

No abstract provided.

Going Native: The Rise Of Online Native Advertising And A Recommended Regulatory Approach, A.J. Casale

Catholic University Law Review

J.D. Candidate, May 2016, The Catholic University of America, Columbus School of Law; B.A., 2006, The George Washington University. The author would like to thank the staff and editors of the Catholic University Law Review for their contributions to this Comment.

The Depiction Of Trademarked Landmarks In Fictional Films: Protecting Filmmakers From Infringement And Dilution Liability, 15 J. Marshall Rev. Intell. Prop. L. 676 (2016), Joel Timmer

UIC Review of Intellectual Property Law

Many well-known landmarks, like the Empire State Building, are protected as trademarks. This trademark status may be used by trademark holders to attempt to control or limit the depictions of those landmarks in artistic works like feature films. Using the trademarked Hollywood Sign as an example, this article examines the status of landmarks as trademarks as well as the protections trademark holders have over unauthorized depictions of trademarked landmarks through actions for trademark infringement or trademark dilution. Concluding that trademark dilution is more likely the proper cause of action for the unauthorized depiction of trademarks in films, this article then …

Student-Athletes Put Full-Court Pressure On The Ncaa For Their Rights, 15 J. Marshall Rev. Intell. Prop. L. 276 (2016), Taylor Riskin

UIC Review of Intellectual Property Law

The struggle between the NCAA and student-athletes is one that will not slow down. The issue is whether the mandatory student-athlete agreement is reasonable and, further, if student-athletes should be compensated for the use of their likeness? The answers to these questions are crucial with over a century of tradition on the line. This comment analyzes the recent Ninth Circuit decision through an antitrust and right of publicity lens. Additionally, this comment proposes a solution that allows student-athletes to receive some type of compensation while the NCAA preserves amateurism.

Facebook, Twitter, And The Wild West Of Ip Enforcement On Social Media: Weighing The Merits Of A Uniform Dispute Resolution Policy, 49 J. Marshall L. Rev. 959 (2016), Daniel Doft

UIC Law Review

In Part I, this comment will discuss the different types of intellectual property issues that can arise on social media websites. Part II will then discuss the three actions currently available to an infringed owner attempting to protect its intellectual property rights. Part III will discuss the Uniform Domain Name Dispute Resolution Policy (UDRP), a successful mechanism for resolving domain name disputes online. Finally, Part IV will discuss the possible creation of a USRP, which will be modeled after the UDRP, in which a private third-party arbitrator would resolve intellectual property disputes in the social media arena. This section will …

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.

That Old Familiar Sting: Tattoos, Publicity, And Copyright, 15 J. Marshall Rev. Intell. Prop. L. 762 (2016), Matthew Parker

UIC Review of Intellectual Property Law

Tattoos have experienced a significant rise in popularity over the last several decades, and in particular an explosion in popularity in the 2000s and 2010s. Despite this rising popularity and acceptance, the actual mechanics of tattoo ownership and copyright remain very much an issue of first impression before the courts. A series of high-priced lawsuits involving famous athletes and celebrities have come close to the Supreme Court at times, but were ultimately settled before any precedent could be set. This article describes a history of tattoos and how they might be seen to fit in to existing copyright law, and …

What’S In A Name, Brother—Profit Or Publicity: An Analysis Of Trademarking Ring Names In Professional Wrestling, Alissa M. Harrington

Cybaris®

No abstract provided.

Innovation Rewards: Towards Solving The Twin Market Failures Of Public Goods, Gregory N. Mandel

Vanderbilt Journal of Entertainment & Technology Law

The challenge of achieving socially optimal incentives for innovation in public goods faces twin market failures: a market failure to adequately promote public goods invention and a market failure to implement innovative public goods once developed. Though innovation in private goods sometimes faces the former hurdle, often ameliorated by intellectual property law, the interaction of both market failures for public goods innovation raises unique difficulties.

Environmentally beneficial technology presents an illustration of the innovation problem for public goods. Private actors lack sufficient incentives both to engage in environmentally beneficial innovation and to implement such innovation. While traditional intellectual property law …

How Algorithmic Trading Undermines Efficiency In Capital Markets, Yesha Yadav

Vanderbilt Law Review

This Article argues that the rise of algorithmic trading undermines efficient capital allocation in securities markets. It is a bedrock assumption in theory that securities prices reveal how effectively public companies utilize capital. This conventional wisdom rests on the straightforward premise that prices reflect available information about a security and that investors look to prices to decide where to invest and whether their capital is being productively used. Unsurprisingly, regulation relies pervasively on prices as a proxy for the allocative efficiency of investor capital. Algorithmic trading weakens the ability of prices to function as a window into allocative efficiency.

This …

How Algorithmic Trading Undermines Efficiency In Capital Markets, Yesha Yadav

Vanderbilt Law School Faculty Publications

This Article argues that the rise of algorithmic trading undermines efficient capital allocation in securities markets. It is a bedrock assumption in theory that securities prices reveal how effectively public companies utilize capital. This conventional wisdom rests on the straightforward premise that prices reflect available information about a security and that investors look to prices to decide where to invest and whether their capital is being productively used. Unsurprisingly, regulation relies pervasively on prices as a proxy for the allocative efficiency of investor capital.

Algorithmic trading weakens the ability of prices to function as a window into allocative efficiency. This …

First Amendment; Freedom Of Speech; Commerical Speech And Advertising; Metpath, Inc. V. Imperato, Sheryl S. Kantz

Akron Law Review

"The decision of Metpath, Inc. v. Imperato is indicative of the growing trend of the judiciary toward affording "commercial speech" the protective shield of the first amendment. As shown by Metpath, where the concern is advertising by a medical clinic, speech with commercial overtones is afforded protection where a public interest in the subject and content of the speech is demonstrated. However, the perimeters of such protection have not been defined by this or previous decisions."

In All Fairness: Using Political Broadcast Access Doctrine To Tailor Public Campaign Fund Matching, Andrew V. Moshirnia, Aaron T. Dozeman

University of Michigan Journal of Law Reform

Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, …

Legal Problems In Data Management: It & Privacy At The Forefront: Drafting And Implementing Effective Social Media Policies In The Workplace, 31 J. Marshall J. Info. Tech. & Privacy L. 549 (2015)

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Effectively Regulating E-Cigarettes And Their Advertising—And The First Amendment, Eric N. Lindblom

O'Neill Institute Papers

If tobacco smoking did not exist in the United States, there would be no reason, from a public health perspective, to allow addictive, nicotine-containing e-cigarettes to be marketed and sold. Because e-cigarette use, by itself, is neither beneficial nor benign to users and nonusers, the only public health justification for allowing e-cigarettes in the existing U.S. market would be if doing so would not sustain or increase existing smoking levels but would help smokers quit completely or provide addicted smokers a less harmful way to obtain the nicotine they crave. Yet e-cigarettes are now pervasive in the U.S. market, being …

Parody In Trademark Law: Dumb Starbucks Makes Trademark Law Look Dumb, 14 J. Marshall Rev. Intell. Prop. L. 143 (2015), Deborah Kemp, Lynn Forsythe, Ida Jones

UIC Review of Intellectual Property Law

Comedian Nathan Fielder opened a coffee shop which looked like a Starbucks, but he put the word “dumb” in front of the Starbucks name. Fielder justified his behavior based on the argument that he had created a parody of Starbucks. This article explores when a parody of a trademark may be entitled to protection under the First Amendment. If so, what are the limits of this protection, especially when a trademark holder argues that the parody is diluting his or her trademark by either blurring or tarnishment? The article analyzes federal statutes and judicial decisions. It concludes with recommendations to …

Bad News Birkins: Counterfeit In Luxury Brands, 14 J. Marshall Rev. Intell. Prop. L. 249 (2015), Colleen Jordan Orscheln

UIC Review of Intellectual Property Law

The luxury fashion industry spends millions of dollars each year fighting counterfeits, yet a fake Louis Vuitton bag is easily purchased on street corners around the world. Proponents of the counterfeits argue that the fakes translate to advertising for the brands, while the luxury brands argue that it damages the future of their brand. The counterfeit market has been linked to child labor, human trafficking, organized crime, and some terrorist groups. The current federal civil and criminal statutes exclude purchasers from prosecution and instead focus on the distributors of the goods. This comment proposes the strengthening of these laws by …

Troubleshooting Legal Malfunction: Lexmark And Consumer Standing Under The Lanham Act, 48 J. Marshall L. Rev. 453 (2015), Jeremy Rovinsky

UIC Law Review

This article suggests that the recent Lexmark decision, while resolving the confusion relating to Lanham Act standing requirements, does nothing to protect those most vulnerable—the consumers. Congress must explicitly declare that consumers have standing under the Lanham Act when they have been damaged by purchasing falsely represented goods or services. Section I provides a history of the Lanham Act and illustrates how different courts initially allowed and then precluded consumers from bringing claims under Section 43(a)’s “any person” language. Section II critiques the opinions that have found no consumer standing, including the Supreme Court’s recent Lexmark decision. Section III highlights …

The Lanham Act's Wonderful Complement To The Fdca: Pom Wonderful V.Coca-Cola Enhances Protection Against Misleading Labeling Through Integrated Regulation, Jennifer Thurswell Radis

Loyola University Chicago Law Journal

POM Wonderful sued Coca-Cola under the Lanham Act claiming that it suffered losses due to the misleading label on Coca-Cola’s Minute Maid brand’s Pomegranate Blueberry juice blend. Reversing the Ninth Circuit’s decision in June 2014, the Supreme Court found that POM’s claim was not precluded even though the label was regulated by the FDCA. In fact, the Court acknowledged the complementary nature of private enforcement with FDA regulation, as it did in Wyeth v. Levine in 2009. This Article submits that POM exemplifies the Court’s willingness to strengthen the Lanham Act’s protections against misleading labeling, as it did the same …

A "Faustian Pact"? Native Advertising And The Future Of The Press, Lili Levi

Articles

As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of "native advertising" – a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers' well-documented ad avoidance. Although the native advertising model debuted on digital-native news sites, it is now ubiquitous in elite legacy media as well. Everyone knew "native" had arrived for good when the venerable New York Times not only introduced its online "Paid Post," but incorporated sponsored content in its print editions, and even hired an in-house …

Who Owns Ellen's Oscar Selfie? Deciphering Rights Of Attribution Concerning User Generated Content On Social Media, 14 J. Marshall Rev. Intell. Prop. L. 564 (2015), Michael Reed

UIC Review of Intellectual Property Law

One of the most memorable moments of the 2014 Academy Awards was Ellen DeGeneres’s famous selfie taken with Bradley Cooper, Meryl Streep, and other famous friends. This so-called “Oscar Selfie” has been estimated to be worth millions of advertising dollars for the event’s sponsor, Samsung. DeGeneres’ use of selfies as a promotional tool was novel method of documenting Hollywood’s greatest night which proved an undeniable successful. However, the fact that Bradley Cooper actually captured the Oscar Selfie raises a number of important questions about how user-generated content distributed through social media fits into existing intellectual property law. At the heart …

The Conflict Between An Athlete’S Right Of Publicity And The First Amendment, 15 J. Marshall Rev. Intell. Prop. L. 117 (2015), Edward Kuester

UIC Review of Intellectual Property Law

The recent rise of fantasy sports has created a conflict between an athlete’s right of publicity and the First Amendment of the Constitution. The legal question being discussed is whether athletes have a right of publicity in their identity, specifically their performance statistics and biographical information. If a right of publicity violation does exist, courts will have to determine whether a fantasy provider’s First Amendment privilege can prevail against an athlete’s publicity rights. This comment examines recent litigation surrounding athletes’ identities and the problems courts have in balancing the conflict between an athlete’s right of publicity and the First Amendment. …

Fixing Failure To Warn, Aaron D. Twerski, James A. Henderson Jr.

Cornell Law Faculty Publications

Design-defect and failure-to-warn cases share the same structural elements. Just as the defendant cannot defend a case premised on defective design without knowing the specifics of how the plaintiff would redesign the product to make it safer, so with regard to defective warnings the plaintiff cannot challenge the reasonableness of the defendant's marketing or whether better warnings would have saved the plaintiff from injury without knowing the specifics of the proposed warnings. No court would accept as adequate a statement by the plaintiff that she has a general idea for a reasonable alternative design (RAD), and no court should accept …

Shared Branding: Associated Use Of Trademarks And Trade Dress Through Shared Retail Space, Lanning Bryer, Scott Lebson, Francesca Montalvo

The Journal of Business, Entrepreneurship & the Law

This Article explores the increasingly popular marketing strategy of two or more unrelated companies offering their separate and distinct mono-branded goods and services in a shared commercial space--herein referred to as “shared branding.”

A Comprehensive Economic And Legal Analysis Of Tying Arrangements, Guy Sagi

Seattle University Law Review

The law of tying arrangements as it stands does not correspond with modern economic analysis. Therefore, and because tying arrangements are so widely common, the law is expected to change and extensive academic writing is currently attempting to guide its way. In tying arrangements, monopolistic firms coerce consumers to buy additional products or services beyond what they intended to purchase. This pressure can be applied because a consumer in a monopolistic market does not have the alternative to buy the product or service from a competing firm. In the absence of such choice, the monopolistic firm can allegedly force the …

Greasing The Wheels: British Deficiencies In Relation To American Clarity In International Anti-Corruption Law, Todd Swanson

Georgia Journal of International & Comparative Law

No abstract provided.

A Call For Truth In The Fashion Pages: What Global Trend In Advertising Regulation Means For U.S. Beauty And Fashion Advertisers, Ashley O'Neil

Indiana Journal of Global Legal Studies

The advertising industry serves an important purpose in our society by acting as the main source of information for consumers about products. Global advertisement spending reaches into the hundreds of billions of dollars annually. Because advertising plays such a large role in the economy, regulators across the globe have increasingly sought to promote truth in advertising. As a result, advertising regulation has exploded in the recent decades. Recently, the beauty and fashion industries have come under fire from advertising regulatory bodies, most notably in Europe, for misleading and offensive advertising practices. Regulators and interest groups are concerned by the unrealistic …

Better Bounty Hunting, Amanda M. Rose

Vanderbilt Law School Faculty Publications

The SEC’s new whistleblower bounty program has provoked significant controversy. That controversy has centered on the failure of the implementing rules to make internal reporting through corporate compliance departments a prerequisite to recovery. This Article approaches the new program with a broader lens, examining its impact on the longstanding debate over fraud-on-the-market (FOTM) class actions. The Article demonstrates how the bounty program, if successful, will replicate the fraud deterrence benefits of FOTM class actions while simultaneously increasing the costs of such suits — rendering them a pointless yet expensive redundancy. If instead the SEC proves incapable of effectively administering the …

The Registrability Of Primarily Geographically Deceptively Misdescriptive Marks: The Development Of § 1052(E)(3), Courtney Liotti

Touro Law Review

No abstract provided.

Trademarks, Gis, And Commercial Aspects Of Wine Distribution Agreements, Sarah A. Hinchliffe

Journal of Food Law & Policy

The marketing of goods under geographical names has always been common. In addition to introducing commercial facets of wine distribution agreements, this article discusses the justifications, principles and, policies that lie behind the protection of geographical indications (GIs) for wine on an international level as well as in the Old World and, to a lesser degree, in the New World. The scope and shape of the GI system will then be scrutinized in light of its own justifications and in the light of its impact on international trade, intellectual property, and agricultural policy.