 Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 26 journals)
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- What are we to do with Deposit Copies'
Authors: Sadie Zurfluh
Abstract: One of the problems courts are faced with today is determining what happens with unpublished works registered under the 1909 Act: can only the sheet music filed with the deposit copy come into evidence when comparing two works as substantially similar' In 2015, the district court in Williams v. Gaye addressed the issue; however, the Ninth Circuit declined to decide the issue on appeal.8 Later in 2018, in Skidmore v. Zeppelin (“Skidmore”), the Ninth Circuit concluded that when dealing with unpublished works under the 1909 Act, the deposit copy defines the scope of the copyright. Part I of this comment is an overview of the deposit copy requirement under the 1909 Act. Part II will address what constitutes a deposit copy. Part III will address the repercussions of Skidmore and how the Ninth Circuit was incorrect in holding that the scope of a copyright comes simply from the deposit copy rather than the entire musical work.
PubDate: Thu, 05 Mar 2020 08:46:06 PST
- One Chuck, Two Chuck: Analyzing Whether Federally Registered Trademarks
Should be Distinguished From Unregistered, Common-Law Trademarks in the
Context of Converse, Inc. v. International Trade Commission
Authors: McKenzie Subart
Abstract: This Comment analyzes which trademark model (the pyramid model or the box model) is a better representation and characterization of trademarks and trademark rights. Under the pyramid model, there is one trademark: both common law rights and federal registration rights attach to this single trademark. For the pyramid model, trademark rights resemble a pyramid because federal registration rights build upon the foundation created by common law rights. Common law rights and federal registration rights are interdependent. Under the box model, there is a common-law trademark and a federal trademark: common law rights attach to the common-law trademark, and federal registration rights attach to the federal trademark. For the box model, trademark rights resemble two separate boxes because the first box contains common law rights, and the second box contains federal registration rights. Common law rights are independent of federal registration rights. Finally, this Comment concludes that the Federal Circuit, in Converse, Inc v. International Trade Commission, got it right; trademarks should be viewed in the context of the pyramid model.
PubDate: Thu, 05 Mar 2020 08:46:03 PST
- Protecting Wisconsinites from Trolls: The Federal Circuit's "Bad
Faith" Preemption and its Restrictive Effect
Authors: Andrew Salomone
Abstract: In this comment, I use Wis. Stat. Ann. § 100.197 (“Wisconsin’s anti-PAE statute”) to demonstrate the significant degree to which the Federal Circuit’s current preemption regime restricts states’ abilities to regulate the behavior of PAEs. In Part II, I summarize Wisconsin’s legislative response to PAEs. In Part III, I contrast the Federal Circuit’s preemption doctrine and the Supreme Court’s doctrine as it relates to state laws similar to anti-PAE statutes. Paying particular attention to Wisconsin’s patent notification statute, I provide a brief preemption analysis in Part IV. Finally, in Part V, I conclude by arguing that the severe consequences of the Federal Circuit’s standard, as demonstrated by its likely preemptive effect on Wisconsin’s anti-PAE statute, highlight the need for the emergence of the Supreme Court’s preemption analysis in the context of state laws touching on patents.
PubDate: Thu, 05 Mar 2020 08:46:00 PST
- Questions of Trust, Betrayal, and Authorial Control in the Avant-Garde:
the Case of Julius Eastman and John Cage
Authors: Toni Lester
Abstract: This article explores how the idea of trust-based dialogue can give us an alternative understanding about the nature of authorial control and inter-pretation across identity-based differences. Part One will discuss the respective personal stories, philosophies, and competing historical understandings that influenced Cage’s creation of Solo and Eastman’s interpretation thereof. Part Two will offer definitions of trust and communication from the fields of feminist relational psychology, philosophy, and law. Throughout Part Two, I will reflect on the extent to which a trust-based dialogue could have taken place between Cage and Eastman. My general sense is that the answer is “no.” Both men had fairly fixed views about the trajectory their art should take, and talking about it probably would not have changed that. Nevertheless, with my conclusion later, I suggest that contemporary composers/authors should still try to create the conditions under which honest, self-aware dialogue about control and trust can arise. Who knows what kind of joint innovative and thought-provoking work could be developed as a result.
PubDate: Thu, 05 Mar 2020 08:45:56 PST
- Finding a Forest Through the Trees: Georgia-Pacific as Guidance for
Arbitration of International Compulsory Licensing Disputes
Authors: Karen McKenzie
Abstract: This paper will examine the challenges of international compulsory licensing by examining the issue historically and legally as well as offer possible solutions. Thus, this paper will explore the challenge of balancing corporate interests against the affordability and availability of pharmaceuticals by focusing on discrete situations in developing countries, the history of compulsory licensing, and how the World Health Organization (the “WHO”) and the WTO have attempted to tackle these challenges through compulsory licensing, and it will suggest a possible framework for use in arbitration, which balances equities through a Georgia-Pacific analysis.
PubDate: Thu, 05 Mar 2020 08:45:53 PST
- Can “IMFcoin” be Scaruffi's Moneta
Immaginaria'
Authors: Alexander M. Heideman
Abstract: Cryptocurrencies have taken the world by storm. But these decentralized and unregulated digital fiat currencies have more in common with the currencies of ages past than many believe. These commonalities may result in the incorporation of new cryptocurrencies into older institutions. One such institution is the International Monetary Fund's Special Drawing Rights (SDRs), which has bene relegated to an afterthought in the international monetary system since the Nixon Shock in 1971. The Fund's Managing Director recently made comments that indicated that the Fund is exploring the incorporation of a cryptocurrency into the framework of the SDR, a change which China and other emerging economies are bound to encourage because it would likely move the international monetary system away from the use of the powerful U.S. dollar as a reserve currency. Because the U.S. dollar remains the most important currency within the international monetary system, this Article first explores the legal status of U.S. currency and the creation of Bretton Woods after World War II and its implosion after the Nixon Shock. It then discusses the basic functions of SDRs and their past uses. Finally, this Article explores two options that the Fund may have in incorporating cryptocurrencies into SDRs: (1) redefining the SDR as its own unique cryptocurrency; and (2) incorporating a specific cryptocurrency within the SDR's basket of currencies.
PubDate: Thu, 05 Mar 2020 08:45:50 PST
- Property and Equity in Trademark Law
Authors: Mark P. McKenna
Abstract: This lecture focuses on the relationship between trademark and unfair competition. Specifically, this lecture discusses the way trademark law has evolved over time with respect to property concepts. There has been a lot of discussion in the literature about the ways trademark law has come to treat trademarks as property. Many scholars who have written about this “propertization” have described it as a shift from consumer to producer protection.I have written a lot about this narrative over the course of my career—I think it is overly simplistic, and in some ways, wrong. Trademark law has al-ways protected marks as property and always significantly for the purpose of protecting producers.6 What has changed is that modern law conceives of the property interests much more broadly than it once did. So the important shift in trademark law was not one from a system focused exclusively on consumer interests to one focused on producers, or from no-property to property—it was a shift in terms of the nature of the property interest protected.But even that revised narrative misses some important things about trade-mark law’s evolution because it is insufficiently attentive to significant changes in the doctrinal structure of trademark law over the course of the last century—specifically with respect to the relationship between trademark law and the broader law of unfair competition. Changes in that relationship, I will argue, did work a meaningful change in the “propertization” of trademark law. Relatedly, and necessarily, these same changes deemphasized legal rules that focused on the defendant’s conduct (rather than the plaintiff’s ownership interest).
PubDate: Thu, 05 Mar 2020 08:45:46 PST
- 23-2 Errata
Abstract: None.
PubDate: Thu, 05 Mar 2020 08:45:43 PST
- 23-2 Table of Contents
Abstract: None.
PubDate: Thu, 05 Mar 2020 08:45:39 PST
- 23-2 Board of Editors
Abstract: None.
PubDate: Thu, 05 Mar 2020 08:45:36 PST
- Scènes à Faire in Music: How an Old Defense is Maturing, And How
It can be Improved
Authors: Torrean Edwards
Abstract: First, this Comment will provide background on the test for copyright infringement used by the Fourth, Eighth, and Ninth Circuits. Second, the Comment will address what scènes à faire is and how recent cases have treated scènes à faire in music. Third and finally, the Comment will offer a suggestion as to a proper scènes à faire determination and analyze how scènes à faire should be applied.
PubDate: Thu, 05 Mar 2020 08:45:30 PST
- The Trademark Dilution Revision Act's Nullifying Effect on Famous
Mark Holder's Dilution Claims
Authors: Kathleen Bodenbach
Abstract: This comment will address how the TDRA has left famous mark holders, particularly high-end fashion house Louis Vuitton, with little in its arsenal to prevent others from mocking and devaluing its marks despite its worthy efforts. Part II addresses the relationship between trademark infringement, dilution, and parody. Part III takes a closer look at fashion giant Louis Vuitton’s strides to protect its famous marks and the courts’ differing approaches to assessing whether a parody exists. Part III also addresses the relationship between parody when it does and does not operate as a designation of source. Part IV offers a discussion of the future implications due to the court’s treatment of the parody exception.
PubDate: Thu, 05 Mar 2020 08:45:27 PST
- The ADR Loophole to Restrictive Non-Compete Agreements
Authors: Jad Itani
Abstract: This Comment considers a key question: do employers have a strategy to protect themselves if these restrictive states are restricting corporations from protecting their self-developed trade secrets' In doing so, Part II will discuss an approach that may allow employers to potentially circumvent the restrictive states. This can be achieved by requiring an employee to undergo private arbitration in a dispute with an employer—a strategy that has gained validity in light of the United States Supreme Court’s holding that upholds arbitration clauses even where significant public policy concerns exist. Specifically, an employer in a restrictive state could potentially enforce an arbitration through a choice of law clause that would provide the employer an opportunity to follow another state’s more lenient approach for non-compete agreements.
PubDate: Thu, 05 Mar 2020 08:45:23 PST
- Tribal Sovereign Immunity as a Defense at the Patent Trial and Appeal
Board' Or a Violation of U.S. Antitrust Laws'
Authors: Samantha Roth
Abstract: This Comment will address two primary issues. First, it will analyze the basis of sovereign immunity rights of tribes, with a focus on the relationship between intellectual property rights and sovereignty. Second, it will discuss whether this arrangement violates the antitrust laws of the United States. This Comment concludes that even if a claim of tribal sovereign immunity is legitimate, it is likely that such an arrangement still violates the relevant antitrust claims.
PubDate: Thu, 05 Mar 2020 08:45:20 PST
- A Mathematical Solution to the Sine of Madness that is Pharmaceutical
Compulsory Licensing Under the TRIPS Agreement and the Doha Declaration
Authors: Ashley E. Sperbeck
Abstract: A viable economic solution is necessary to address the shortcomings, textual ambiguities, and deficiencies engulfing international patent protection, leading to the inability of LDCs facing public health crises or national emergencies and lacking pharmaceutical manufacturing facilities to obtain generic pharmaceuticals. This Note poses a solution to this problem via another Amendment to the TRIPS Agreement and the Doha Declaration, which provides a mathematical framework to determine when and under what circumstances a compulsory license should be granted. Furthermore, this Note contemplates establishment of a WTO subcommittee to oversee this proposed solution and to ensure compliance with this Amendment. This concrete solution will drastically improve access to pharmaceuticals for the LDC’s in dire need of them.
PubDate: Thu, 05 Mar 2020 08:45:17 PST
- Opting into Device Regulation in the Face of Uncertain Patentability
Authors: Rebecca S. Eisenberg
Abstract: This article examines the intersection of patent law, FDA regulation, and Medicare coverage in a particularly promising field of biomedical innovation: genetic diagnostic testing. First, I will discuss current clinical uses of genetic testing and directions for further research, with a focus on cancer, the field in which genetic testing has had the greatest impact to date. Second, I will turn to patent law and address two recent Supreme Court decisions that called into question the patentability of many of the most important advances in genetic testing. Third, I will step outside patent law to take a broader view of the legal environment for new developments in genetic testing, with a focus on two federal regulatory agencies: the Food & Drug Administration (FDA), which regulates new drugs and medical devices under statutory standards for safety and effectiveness; and the Centers for Medicare and Medicaid Services (CMS),which sets reimbursement policies for Medicare under statutory standards that limit coverage to technologies that are reasonable and necessary.Last, with this background, I will explain a recent surprising development: developers of next generation sequencing (NGS) diagnostic tests for tumor DNA have begun seeking FDA approval or clearance for tests they are at liberty to provide, and in fact have already begun to provide, without asking FDA for permission. The answer lies in understanding the rules and practices that govern health insurance coverage and the important role of FDA in assessment of new technologies. This episode sheds an interesting light on the roles and interactions of different sources of legal regulation in supporting innovation outside the patent system.
PubDate: Thu, 05 Mar 2020 08:45:13 PST
- Volume 23-1 Table of Contents
Abstract: None.
PubDate: Thu, 05 Mar 2020 08:45:10 PST
- Volume 23-1 Board of Editors
Abstract: None.
PubDate: Thu, 05 Mar 2020 08:45:07 PST
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