Intellectual Property Law Commons^™

Trademarking Hate Speech: The Dangers Of Inconsistency In The Federal Trademark Registration Process, Michaela A. Giuggio

Lewis & Clark Law Review

In 2017, the United States Supreme Court decided in Matal v. Tam that the Lanham Act’s prohibitions on disparaging trademarks violated the First Amendment of the Constitution. Two years later, it decided in Iancu v. Brunetti that prohibitions on “immoral or scandalous” marks were similarly unconstitutional. In the wake of these decisions, and at a time when hate speech is surging in the United States, this Comment seeks to address the danger of the USPTO’s approach to federal trademark registration. Part I uses the example of the WHITE LIVES MATTER mark to introduce the problems that arise in this new, …

Knowledge Commons Past, Present, And Future, Michael J. Madison

Lewis & Clark Law Review

The project now known as Governing Knowledge Commons, or GKC, was launched more than 15 years ago on the intuition that skepticism of intellectual property law and information exclusivity was grounded in anecdote and ideology rather than in empiricism. Structured, systematic, empirical research on mechanisms of knowledge sharing was needed. GKC aimed to help scholars produce it. Over multiple books, case studies, and other work, the scope of GKC has expanded considerably, from innovation to governance; from invention and creativity to data, privacy, and markets; and from social dilemmas focused on things to governance strategies directed to communities and collectives. …

Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Faculty Scholarship

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …

Mickey, Disney, And The Public Domain: A Ninety-Five-Year Love Triangle, Jennifer Jenkins

Faculty Scholarship

No abstract provided.

Sharing Pathogen Sequence Data For Global Scientific Research Under The Nagoya Protocol To The Convention On Biological Diversity, Jerome H. Reichman, Carolina Dos S. Ribeiro, George B. Haringhuizen, Paul F. Uhlir

Faculty Scholarship

The Nagoya Protocol to the Convention on Biological Diversity (CBD) has threatened to impede access to genetic resources and related data for cross-border scientific research. In principle, every use of genetic resources would require a set of contracts under the CBD, in a “bilateral” regime. The related transaction costs could overwhelm many transnational research undertakings, affecting even public health responses to outbreaks and epidemics. However, the Nagoya Protocol also offers a unique opportunity to resolve this dilemma, despite struggles to define the meaning and coverage of “digital sequence information.” The coverage of genetic sequence data under the CBD remains controversial …

Balancing Interests: Ai, Business & Human Rights, And The Legal Landscape In An Era Of Disruption, Jena Martin, Ritu Narula

Faculty Articles

On October 30, 2023, the Biden Administration issued a sweeping executive order espousing a policy to advance the development and use of artificial intelligence ("Al") while also establishing safeguards across the federal government. The Executive Order marked the U.S. government's largest move forward related to the regulation of Al. The Order also represents the government's latest effort to advance equity, privacy, and national security in the use of AI systems. Moreover, the Order comes at a time when governments around the world are wrestling with the impact of AI and its disruptive effect, not just on markets, but on society …

Tools Do Not Create: Human Authorship In The Use Of Generative Artificial Intelligence, Michael D. Murray

Law Faculty Scholarly Articles

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so.

The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the …

Deepfakes And Dog Toys: First Amendment Defenses Under The Rogers Test After Jack Daniel’S V. Vip Products, Michael D. Murray

Law Faculty Scholarly Articles

Given that deepfakes are almost always associated with expression of some kind, any attempt to litigate or regulate deepfakes will require the consideration of the First Amendment. Deepfakes implicate so many areas of law and society that a discussion of the interface of First Amendment free speech rights and deepfakes writ large would require a treatise volume with several chapters. This article is more modest: It will examine the past, present, and future use of the Rogers test in an evaluation of the application of First Amendment protections in trademark infringement cases and in legal actions traditionally associated with the …

Comparing Gdpr Against The United States’ Approach To Data Breach Notification By Examining Texas And California And The Feasibility Of A Universal Standard, Amrit Nagi

Cybaris®

No abstract provided.

Ai-Ip? Copyright In An Age Of Internet Propaganda With Artificial Intelligence, Sonya Saepoff

Cybaris®

No abstract provided.

Just For Show: Eliminating Judicial Exceptions To Section 101 Would Render Limits On Patent-Eligible Subject Matter Meaningless, Katie Crocker

Cybaris®

No abstract provided.

Born Too Late To Patent The Engine, Born Too Early To Patent The Lightsaber, Born Just In Time To Patent Space Inventions, Ryan Horejsi

Cybaris®

No abstract provided.

Transformative Play: The Legalities Of Modding In The Video Game Industry, Erika Weisdorfer

Cybaris®

No abstract provided.

Virtually Identical: A Case For Maintaining Architectural Copyright Protections In The Metaverse, Stephen Mcpaul

Cybaris®

No abstract provided.

A Comparative Analysis Of The Prevention Of Pharmaceutical Patenting Abuse In The United States, Japan, And France, Kristen Coan

Cybaris®

No abstract provided.

‘News Reporting On Possible Origins Of The Covid-19 Pandemic: A Critical Review And Case Study’, Raya M. Fanuzzi

Undergraduate Theses, Professional Papers, and Capstone Artifacts

This project is a critical analysis of news reports that discuss the potential origins of the 'COVID-19' pandemic for the purposes of identifying themes and trends in the actual reporting. Around 500 news reports published in the U.S. were analyzed and over 100 of them were selected for the critical review. Articles were found using 'Access News Archive' and Google search engine. Original methods for analyzing and reviewing articles were developed and used. A case study is included aside from the review which focuses specifically on trends in fact-check reporting during the pandemic.

Beyond Traditional Ip: Addressing Regulatory Barriers, Cynthia M. Ho

Faculty Publications & Other Works

The chapter begins with the genesis of relevant regulatory protections and their general parameters before discussing their prevalence among countries. It then turns to discussion of proposed and actual modification of TRIPS requirements for COVID and how that intersects with these regulatory barriers. The chapter concludes with recommendations.

Artificial Intelligence And Intellectual Property In Healthcare Technologies, Charlotte A. Tschider, Cynthia M. Ho

Faculty Publications & Other Works

No abstract provided.

Addressing Ip And Technology Challenges To Pandemic Protection: A Need For Global Coordination To Promote National Security, Cynthia M. Ho

Faculty Publications & Other Works

This Artie!£ argues that effective national security mandates protection against the spread of infectious diseases, which requires addressing intellectual property (IP) and technology obstacles. Without modification, IP laws can bar the manufacture of needed treatments by anyone besides the IP owner and its licensees. Although there was some recognition during the COVID-19 pandemic that existing IP laws should be modified, there was strong resistance not only by IP-owning companies, but also by individual countries that impeded the ability to manufac­ture needed vaccines during the height of the pandemic. Many global leaders have recognized that future pandemics are inevitabw and that …

Retrenching Speech Protective Thresholds In Trademark Law, Jake Linford

Scholarly Publications

In their article, Raising the Threshold for Trademark Infringement to Protect Free Expression, Christine Haight Farley and Lisa Ramsey argue in favor of a speech-protective fair use test that would replace multiple tests applied by the U.S. Courts of Appeals when a defendant's alleged infringement has either informational or expressive elements. This Response explains why this raised threshold test is unlikely to be adopted following the U.S. Supreme Court's retrenchment of speech-protective thresholds in Jack Daniel's Properties, Inc. v. VIP Productions, LLC. That prediction is bolstered by the Court's likely holding in Vidal v. Elster. Readers persuaded that current defensive …