Marketing Law Commons^™

Outspoken: Social Media And The Modern College Athlete, 12 J. Marshall Rev. Intell. Prop. L. 509 (2013), Meg Penrose

UIC Review of Intellectual Property Law

The First Amendment to the United States Constitution grants American citizens the right to free speech. However, in the case of college athletes, this right is not without limitation. In exchange for the privilege of participating in college level athletics, college athletes voluntarily agree to terms that restrict their abilities to speak freely, specifically in the context of social media platforms. This article details situations in which college athletes have made offensive statements via social media for which they later needed to delete, explain, and apologize. These examples support the notion that restrictions on college athletes’ speech are not only …

The Emerging Reality Of Social Media: Erosion Of Individual Privacy Through Cyber-Vetting And Law’S Inability To Catch Up, 12 J. Marshall Rev. Intell. Prop. L. 551 (2013), Saby Ghoshray

UIC Review of Intellectual Property Law

The rise of social media means that data about a large number of people is available in public and quasi-public digital locations. Employers, keen on taking advantage of this additional data to decrease the risk associated with an offer of employment, are engaging in “cyber-vetting”—non-consenting social media searches conducted by third parties or the employers themselves. To the extent that current law applies to this practice, the regulation it provides is weak and attacks only part of the problem. Left unchecked, cyber-vetting has the potential to fundamentally alter the scope of prospective employees’ rights. This article surveys the legal and …

Memetic Theory, Trademarks & The Viral Meme Mark, 13 J. Marshall Rev. Intell. Prop. L. 96 (2013), Shontavia Jackson Johnson

UIC Review of Intellectual Property Law

This Article proposes that memetic theory is a useful lens through which to view trademarks, particularly as there has been a rise in the number of applications for culturally-driven words and catchphrases in the United States Patent and Trademark Office. Memetic theory, or memetics, is a scientific field related to how units of information evolve and replicate. These units of information, called memes, undergo a process of natural selection comparable to that of genes. To survive as trademarks, memes must not only exist in the proper form, but they must also subsist in an environment where replication, variation, and selection …

Comparing Apples And Oranges In Trademark Law: Challenging International And Constitutional Validity Of Plain Packaging Of Tobacco Products, 13 J. Marshall Rev. Intell. Prop. L. 130 (2013), Sarah A. Hinchliffe

UIC Review of Intellectual Property Law

Plain packaging, a new tobacco control tool being considered by a growing number of countries, mandates the removal of all attractive and promotional aspects of tobacco product packages. As a result of plain packaging, the only authorized feature remaining on a tobacco package is the brand name, displayed in a standardized font, size, color, and location on the package. At issue is the meaning of “use” of trademarks on plain packaging, and whether plain packaging amounts to the creation of an invalid encumbrance. The tobacco industry and other regulated sectors (including wine, fast-food, and pharmaceuticals) also believe that plain packaging …

A Matter Of National Importance: The Persistent Inefficiency Of Deceptive Advertising Class Actions, Stacey M. Lantagne

Journal of Business & Technology Law

No abstract provided.

Google And Search-Engine Market Power, Mark R. Patterson

Faculty Scholarship

A significant and growing body of commentary considers whether possible manipulation of search results by Google could give rise to antitrust liability. Surprisingly, though, little serious attention has been paid to whether Google has market power. Those who favor antitrust scrutiny of Google generally cite its large market share, from which they infer or assume its dominance. Those who are skeptical of competition law’s role in regulating search, on the other hand, usually cite Google’s 'competition is only a click away' mantra to suggest that Google’s market position is precarious. In fact, the issue of Google’s power is more complicated …

Affixing The Service Mark: Reconsidering The Rise Of An Oxymoron, Peter J. Karol

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The First Amendment, Gaming Advertisements, And Congressional Inconsistency: The Future Of The Commercial Speech Doctrine After Greater New Orleans Broadcasting Ass'n V. United States, Nicholas P. Consula

Pepperdine Law Review

No abstract provided.

The Fcc’S Sponsorship Identification Rules: Ineffective Regulation Of Embedded Advertising In Today’S Media Marketplace, Jennifer Fujawa

Federal Communications Law Journal

In the contemporary media landscape, the advertising industry is increasingly relying on embedded advertising to reach consumers. The scope of embedded advertising in today's marketplace raises significant concerns and complicated First Amendment questions regarding the type of regulation needed to suit the interests of all parties concerned. In 2008, the FCC released a joint Notice of Intent/Notice of Proposed Rulemaking entitled Sponsorship Identification Rules & Embedded Advertising, which requested comments on the FCC's proposed changes to its sponsorship identification rules in light of this growing prevalence of embedded advertising. Yet, four years later, the FCC's sponsorship identification rules are exactly …

Eco-Labeling: An Argument For Regulation And Reform, Lauren Sherman

Pomona Senior Theses

This thesis analyzes the strengths and weaknesses of various types of eco-labels, focusing primarily on differences between mandatory and voluntary eco-labeling programs. I argue that many of the problems with eco-labeling could be addressed by improving regulations. The current regulation of eco-labeling in the United States is discussed, especially the shortcomings of the FTC’s Green Guides. I recommend creating enforceable national legislation to regulate environmental claims that includes involvement of key stakeholders, a list of acceptable environmental claims, enforceable national definitions of environmental terms, an avenue for manufacturers and consumers to challenge environmental claims, consumer education, and periodic review and …

Clouded Diamonds: Without Binding Arbitration And More Sophisticated Dispute Resolution Mechanisms, The Kimberley Process Will Ultimately Fail In Ending Conflicts Fueled By Blood Diamonds , Shannon K. Murphy

Pepperdine Dispute Resolution Law Journal

In 2003, under an initiative of the United Nations (U.N.), various nations of the world gave life to the Kimberley Process Certification Scheme (KPCS)-a method by which consumers of all levels could know the origin of their diamonds-with the Scheme only certifying those harvested from legal, government-run mines. The Scheme's drafters believed that, if given the choice, consumers would choose to buy diamonds mined legally, with profits flowing to legitimate sources of power. However, the KPCS as it stands is voluntary and lacks the teeth needed to deter its violators. The KPCS lacks a binding arbitration agreement and needs a …

Counterfeits, Copying And Class, Ann Bartow

Law Faculty Scholarship

Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) "knockoffs," in which aesthetically functional design attributes have been copied but trademarks have not. Toward that end, as a normative matter, the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible …

Right To Information Identity, 29 J. Marshall J. Computer & Info. L. 539 (2012), Elad Oreg

UIC John Marshall Journal of Information Technology & Privacy Law

Inspired by the famous Warren and Brandeis conceptualization of the “right to privacy,” this article tries to answer a modern, conceptual lacuna and presents the argument for the need to conceptualize and recognize a new, independent legal principle of a “right to information identity.” This is the right of an individual to the functionality of the information platforms that enable others to identify and know him and to remember who and what he is. Changes in technology and social standards make the very notion of identity increasingly fluid, transforming the way it is treated and opening new and fascinating ways …

The Ownership And Exploitation Of Personal Identity In The New Media Age, 12 J. Marshall Rev. Intell. Prop. L. 1 (2012), Thomas Hemnes

UIC Review of Intellectual Property Law

Personally Identifiable Information (“PII”) has never been more valuable. In today’s networked world, seemingly trivial facts can be collected, molded into a marketable economic profile, and transferred in the blink of an eye. To be sure, the commodification of PII allows for provision of dramatically more efficient and effective services. Yet the potential for privacy abuses is substantial. What interest does one have in the constellation of facts that defines one’s identity? Is it something one can own, like their right of publicity? Or are others free to use what they learn about a person? This article surveys current privacy …

The End Of Forgetting And "Administrative Rights" To Our Online Personas, Jamie R. Lund

IP Theory

No abstract provided.

Marketing Pharmaceuticals: A Constitutional Right To Sell Prescriber-Identified Data?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Pharmaceutical companies have strong economic interests in influencing physician-prescribing behaviors. They advertise direct-to-the-consumer and to the physician. Beyond general marketing, manufacturers promote their drugs to physicians through “detailing”—sales representatives (“detailers”) visiting medical offices to persuade physicians to prescribe their products.

By law, pharmacies receive specific information with every prescription, including the physician’s name, the drug, and the dose. Pharmacies sell these records to Prescription Drug Intermediaries (data miners), who use advanced computing to analyze prescriber-identified information (which physicians prescribe what drugs, in what dose, and with what prescribing patterns). Data miners, in turn, lease sophisticated reports to pharmaceutical companies to …

Infringers Or Innovators? Examining Copyright Liability For Cloud-Based Music Locker Services, Brandon J. Trout

Vanderbilt Journal of Entertainment & Technology Law

Music lockers--Internet sites where users may store a copy of their music for later playback--have revolutionized the way people listen to music, allowing them to take their music with them anywhere in the world. However, rights holders are concerned that these locker services potentially infringe music copyrights when they allow their users to upload and stream music and when they use a space-saving technology called "deduplication." This Note delineates the separate rights guaranteed under the Copyright Act as applicable to music lockers: the right to copy and the right of public performance. The analysis looks at several music locker services …

Market-Oriented Subnational Debt Regimes: Empowering The Developing World To Construct Infrastructure, S. Samuel Young

Vanderbilt Journal of Transnational Law

Globally, as national governments continue to decentralize fiscal and governmental responsibility, the sound facilitation of subnational debt markets will play a critical role in the construction of infrastructure. However, sparse scholarship exploring the optimal legal and financial frameworks for encouraging the construction of infrastructure at the subnational level has left a number of open questions. This Note primarily provides a basic overview of subnational debt trends and policies. It first reviews subnational debt regimes, comparing market-oriented regimes with regimes with varying levels of involvement by central governments. Though not always possible, the Note concludes that market-driven incentives generally produce the …

Intercepting Licensing Rights: Why College Athletes Need A Federal Right Of Publicity, Talor Bearman

Vanderbilt Journal of Entertainment & Technology Law

The right of publicity is the right of an individual to control the commercial use of her name, image, likeness, or other identifiable aspects of her persona. In the United States, the right of publicity is a state-law right, not federal, and recognition of the right varies significantly from state to state. The lack of uniformity among states poses significant problems for individuals who are recognizable throughout the United States. Specifically, student athletes, who would lose the ability to play college athletics if they were reimbursed for the use of their images, are among the individuals most at risk of …

Search Neutrality As An Antitrust Principle, Daniel A. Crane

Articles

Given the Internet's designation as "the great equalizer,"' it is unsurprising that nondiscrimination has emerged as a central aspiration of web governance.2 But, of course, bias, discrimination, and neutrality are among the slipperiest of regulatory principles. One person's bias is another person's prioritization. Fresh on the heels of its initial success in advocating a net neutrality principle,' Google is in the uncomfortable position of trying to stave off a corollary principle of search neutrality.' Search neutrality has not yet coalesced into a generally understood principle, but at its heart is some idea that Internet search engines ought not to prefer …