Intellectual Property Law Commons^™

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

Cardozo Arts & Entertainment Law Journal

The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one's trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on increasing …

Registration And Federalization: 75 Years Of The Lanham Act, Mark P. Mckenna, Brittany Von Rueden

Cardozo Arts & Entertainment Law Journal

The Lanham Act, enacted 75 years ago, aimed to enhance notice and uniformity in trademark law, primarily through improved registration processes. However, its goals were only partially met. While it successfully federalized trademark law, it fell short in emphasizing registration due to court interpretations that allowed enforcement of unregistered marks, leading to a more complex and expanded scope of trademark protection.

Mark Talk, Alexandra J. Roberts

Cardozo Arts & Entertainment Law Journal

The article argues that trademark law should evolve to incorporate "mark talk"—consumer discussions and usage of trademarks on social media and online platforms—as a key factor in determining secondary meaning. Traditional methods, such as advertising expenditures and sales data, are critiqued for their limitations in the digital age. The author advocates for updating legal frameworks to reflect contemporary consumer interactions, emphasizing that mark talk provides direct evidence of consumer perception and a mark's distinctiveness. However, courts and the USPTO have been slow to adopt these modern approaches, highlighting a disconnect between legal practices and the realities of digital communication.

Submission To Canadian Government Consultation On A Modern Copyright Framework For Ai And The Internet Of Things, Sean Flynn, Lucie Guibault, Christian Handke, Joan-Josep Vallbé, Michael Palmedo, Carys Craig, Michael Geist, Joao Pedro Quintais

Reports & Public Policy Documents

We are grateful for the opportunity to participate in the Canadian Government’s consultation on a modern copyright framework for AI and the Internet of Things. Below, we present some of our research findings relating to the importance of flexibility in copyright law to permit text and data mining (“TDM”). As the consultation paper recognizes, TDM is a critical element of artificial intelligence. Our research supports the adoption of a specific exception for uses of works in TDM to supplement Canada’s existing general fair dealing exception.

Empirical research shows that more publication of citable research takes place in countries with “open” …

Trading Pharma Goods The Wto Legal Framework, Neeraj Rajan Sabitha, Petros C. Mavroidis

Faculty Scholarship

Trading of pharma goods has attracted widespread global attention in the wake of the COVID-19 pandemic. The Agreement on Trade in Pharmaceutical Products (“Pharma Agreement”) – a sectoral agreement between a handful of WTO members – was concluded in 1994 and aimed to eliminate duties on various pharmaceutical products. Nevertheless, this is all that the Pharma Agreement does: it eliminates duties and does not touch upon the regulatory aspects relating to marketing of pharmaceutical goods. WTO members remain sovereign to decide on this score, but must observe the WTO Licensing Agreement as well as nondiscrimination. Thus, while the intensity of …

The Research Patent, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The patent system gives courts the discretion to tailor patentability standards flexibly across technologies to provide optimal incentives for innovation. For chemical inventions, the courts deem them unpatentable if the chemical lacks a practical, non-research-based use at the time patent protection is sought. The fear is that an early-stage patent on a research input would confer too much control over yet-unknown uses for the chemical, thereby potentially hindering downstream innovation. Yet, denying patents on research inputs can frustrate patent law's broad goal of protecting and promoting scientific and technological advances.

This Article addresses this problem by proposing a new form …

Introducing The Copyright Anxiety Scale, Amanda Wakaruk, Céline Gareau-Brennan, Matthew Pietrosanu

Copyright, Fair Use, Scholarly Communication, etc.

Navigating copyright issues can be frustrating to the point of causing anxiety, potentially discouraging or inhibiting legitimate uses of copyright-protected materials. A lack of data about the extent and impact of these phenomena, known as copyright anxiety and copyright chill, respectively, motivated the authors to create the Copyright Anxiety Scale (CAS). This article provides an overview of the CAS’s development and validity testing. Results of an initial survey deployment drawing from a broad cross-section of respondents living in Canada and the United States (n = 521) establishes that the phenomenon of copyright anxiety is prevalent and likely associated with …

An Analysis Of Use And Performance Data Aggregated From 35 Institutional Repositories, Kenning Arlitsch, Jonathan Wheeler, Minh Thi Ngoc Pham, Nikolaus Nova Parulian

Copyright, Fair Use, Scholarly Communication, etc.

Purpose – This study demonstrates that aggregated data from the Repository Analytics and Metrics Portal (RAMP) have significant potential to analyze visibility and use of institutional repositories (IR) as well as potential factors affecting their use, including repository size, platform, content, device and global location. The RAMP dataset is unique and public.

Design/methodology/approach – The webometrics methodology was followed to aggregate and analyze use and performance data from 35 institutional repositories in seven countries that were registered with the RAMP for a five-month period in 2019. The RAMP aggregates Google Search Console (GSC) data to show IR items that surfaced …

Compendium Of U.S. Copyright Office Practices, Third Edition, United States Copyright Office

Copyright, Fair Use, Scholarly Communication, etc.

The Compendium of U.S. Copyright Office Practices, Third Edition (the “Compendium” or “Third Edition”) is the administrative manual of the Register of Copyrights concerning Title 17 of the United States Code and Chapter 37 of the Code of Federal Regulations. It provides instruction to agency staff regarding their statutory duties and provides expert guidance to copyright applicants, practitioners, scholars, the courts, and members of the general public regarding institutional practices and related principles of law.

The Compendium documents and explains the many technical requirements, regulations, and legal interpretations of the U.S. Copyright Office with a primary focus on the registration …

Patents As Signal Of Quality In Crowdfunding, Christopher A. Cotropia

Law Faculty Publications

Patents and crowdfunding both attempt to foster early stage innovations. In theory, patents signal quality and value to attract investment and buyers and ultimately facilitate commercialization. Crowdfunding allows multiple individuals to make small contributions to finance start-up ventures. This Article reports on two related studies investigating the interaction between these two innovation tools by determining the impact of a crowdfunding campaign’s patent status on the campaign’s success and delivery. The first study examines 9,184 Kickstarter campaigns in patent-eligible categories to determine whether patented or patent-pending labeled projects are more likely to reach their funding goal and in turn achieve actual, …

Emotions And Intellectual Property Law, Margaret Chon

Faculty Articles

Emotions constitute an integral part of the diverse approaches that we bring to bear upon our most pressing law and policy issues. This article explores the role of emotions in intellectual property, information, and technology law (IP). Like other areas of law, IP commits to, prioritizes, and even honors, reason, logic, and facts—which can result in the sidelining of the affective components of law. Yet our affective responses to legal and other phenomena influence both cognition and reason. Part I of the article provides a general overview of the field of law and emotions, pointing out how this approach to …

An Estate Plan For Kanye West, Thomas E. Simmons

Cardozo Arts & Entertainment Law Journal

One inventory item in megastar Kanye West's vast portfolio of assets merits a unique sort of care and safeguarding his right ofpublicity. The right ofpublicity is a property interest which represents the commercial value of a celebrity's name, image, and likeness. In some states, including California, the right survives the celebrity's death and is freely alienable and devisable. A protective arrangement, such as a trust, is often pursued to impose postmortem use and transferability restrictions on property that has particular importance to the testator. This Article proposes a noncharitable purpose trust as a means by which Kanye West's right of …

Fashion, Models, And Intellectual Property, Andres Sawicki

Cardozo Arts & Entertainment Law Journal

In this Article, I revisit the impact of Professor Kal Raustiala and Professor Christopher Sprigman 's landmark article, The Piracy Paradox. Their work identified an empirical anomaly that was difficult to explain in light of the standard justification for intellectual property rights: although IP law does not grant meaningful exclusivity in novel fashion designs, the fashion industry invests significant resources developing those novel designs. To account for this anomaly, The Piracy Paradox shifted the focus from the supply side of innovation to the demand side. The standard justification emphasized that innovators face threats of copying that they cannot easily mitigate; …

Fashion Forward: Fashion Innovation In The Era Of Disruption, Francesca M. Witzburg

Cardozo Arts & Entertainment Law Journal

The fashion industry, a significant global economic and cultural force, faces disruption from fast fashion and digital acceleration, challenging traditional legal protections. While the U.S. offers limited intellectual property (IP) safeguards for fashion designs compared to the European Union, the industry's rapid evolution suggests that innovation through new business models, rather than stricter IP laws, may be the key to future success.

"Gigi, Over Here!": Celebrity Use Of Copyrighted Paparazzi Photographs, Dylan B. Reich

Cardozo Arts & Entertainment Law Journal

The note argues that celebrities should have limited rights to use paparazzi-taken photos of themselves, balancing their rights with those of photographers. It proposes that non-commercial use by celebrities could be permissible under certain legal doctrines.

From A Circuit Split To A District Split: Amending Copyright Lawsuits After Fourth Estate Public Benefit Corporation V. Wall-Street.Com, Llc, Habeeb Sheikh

Cardozo Arts & Entertainment Law Journal

The note examines the legal implications of the Supreme Court's decision in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, which resolved a circuit split by adopting the "registration approach" for copyright lawsuits. This approach requires a copyright registration to be granted by the Copyright Office before a lawsuit can be filed. The article argues that lower courts are now divided on whether plaintiffs can amend their complaints to include newly registered copyrights after the initial filing, and it advocates for allowing such amendments to ensure fairness and efficiency in the judicial process.

No Standing And No Recourse: The Threat To Employee Data Under Current U.S. Cybersecurity Regulation, Georgia D. Reid

Touro Law Review

No abstract provided.

Comic Books, The First Amendment, And The “Best Test” For Right Of Publicity Issues, Rachel Silverstein

Touro Law Review

No abstract provided.

A Global Pandemic Remedy To Vaccine Nationalism, Emily Michiko Morris, Orit Fischman-Afori, Miriam Marcowitz-Bitton

Akron Law Faculty Publications

Recognizing the need for flexibility in times of emergency and building upon knowledge gained from existing international and domestic compulsory licensing laws, we propose a global, centralized scheme to provide access to vaccines during pandemics. In many ways our proposal mirrors some of the World Health Organization's (WHO) COVID-19 vaccine initiatives but consolidates and expands them into a much more efficacious form. Under the proposed model, the WHO's declaration of a pandemic would trigger a global procurement and distribution scheme for vaccines. The proposed scheme would be mandatory and would require that all countries operate as one buyer vis-a-vis vaccine …

Eu General Data Protection Regulation Sanctions In Theory And In Practice, W. Gregory Voss, Bouthinon-Dumas, Hugues

Santa Clara High Technology Law Journal

EU GENERAL DATA PROTECTION REGULATION SANCTIONS IN THEORY AND IN PRACTICE