Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 26 journals)
Showing 1 - 9 of 9 Journals sorted alphabetically
Berkeley Technology Law Journal     Free   (Followers: 14)
Expert Opinion on Therapeutic Patents     Hybrid Journal   (Followers: 12)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 20)
IIC - International Review of Intellectual Property and Competition Law     Hybrid Journal   (Followers: 28)
International Data Privacy Law     Hybrid Journal   (Followers: 22)
International Journal of Intellectual Property Management     Hybrid Journal   (Followers: 30)
IP Theory     Open Access   (Followers: 12)
JIPITEC Journal of Intellectual Property, Information Technology and E-Commerce Law     Open Access   (Followers: 24)
John Marshall Journal of Information Technology & Privacy Law     Full-text available via subscription   (Followers: 7)
John Marshall Review of Intellectual Property Law     Free   (Followers: 10)
Journal of Copyright in Education & Librarianship     Open Access   (Followers: 33)
Journal of Data Protection & Privacy     Full-text available via subscription   (Followers: 6)
Journal of Intellectual Property Law & Practice     Hybrid Journal   (Followers: 30)
Journal of Intellectual Property Rights (JIPR)     Open Access   (Followers: 23)
Law, State and Telecommunications Review     Open Access   (Followers: 1)
Marquette Intellectual Property Law Review     Open Access   (Followers: 14)
Northwestern Journal of Technology and Intellectual Property     Open Access   (Followers: 8)
Propiedad Intelectual     Open Access   (Followers: 1)
Recent Patents on Anti-Cancer Drug Discovery     Hybrid Journal   (Followers: 2)
Recent Patents on Anti-Infective Drug Discovery     Hybrid Journal   (Followers: 1)
Reports of Patent, Design and Trade Mark Cases     Hybrid Journal   (Followers: 5)
Revista La Propiedad Inmaterial     Open Access  
The Journal of World Intellectual Property     Hybrid Journal   (Followers: 26)
Ticaret ve Fikri Mülkiyet Hukuku Dergisi     Open Access  
Web Journal of Current Legal Issues     Open Access   (Followers: 6)
World Patent Information     Hybrid Journal   (Followers: 17)
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Fordham Intellectual Property, Media and Entertainment Law Journal
Number of Followers: 20  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1079-9699
Published by Fordham University Homepage  [6 journals]
  • Should the NCAA Have to Pay' Long-Term Injuries in College Athletics,
           Improper Assumptions of Risk, and Coverage of Medical Expenses After

    • Authors: Alexandrea Jacinto
      Abstract: Student-athletes spend years training, perfecting their sport, and working hard in school in order to make it to the big leagues: Division I College Athletics. However, when student-athletes finally get there, they are met with empty promises, and often leave with injuries that no one took the time to warn them about. That is because, despite being told that they must sign an agreement with the National Collegiate Athletic Association (“NCAA”) which binds them to the organization’s rules, athletes learn quickly that the other side of that agreement is rarely, if ever, upheld when they need it. Courts fail to recognize the coercive nature of the relationship between the NCAA and student-athletes, and completely ignore the duty of the NCAA to adequately inform athletes of the potential risk of their athletic participation. The long-relied-upon assumption-of-risk doctrine utilized by the NCAA as a defense should no longer be accepted by the courts, as it is clear that the nature of participation in athletics is not always entirely voluntary. Thus, the NCAA should be held liable for the lifelong medical expenses of student-athletes brought about by injuries sustained while acting as athletic representatives of their school.
      PubDate: Thu, 30 Apr 2020 14:33:16 PDT
  • FRE-Bird: An Evidentiary Tale of Two Colliding Copyrights

    • Authors: Daniel Abowd
      Abstract: Sound recordings are not musical compositions. Sound recordings embody musical compositions. Thus, when sound recordings appear in musical composition infringement trials, they do so as an imperfect facsimile of the composition they actualize. As a result, they can confuse and mislead juries tasked only with evaluating the similarity of the underlying composition. On the other hand, music is an aural medium: how can juries be expected to compare two songs without listening to their commercial embodiments'Several recent cases have hinged on the admissibility of sound recordings in composition infringement trials. In doing so, they have implicated three fundamental questions: (1) Where does composition end and sound recording begin' (2) How has the evolution of creative and business practices in the music industry complicated the formerly tidy separation of composition and performance/recording' (3) What are the policy implications for courts defining “composition” more broadly or more narrowly, and how do these interact with the underlying policies governing sound recording evidentiary decisions'This Note targets a seemingly simple question: how should courts approach the use of sound recordings in composition infringement trials' Any thorough answer, however, must grapple with the many underlying creative, industry, and public policy complexities that bear on that debate. Thus, this Note necessarily traces the historical convergence of composition and recording in creative, industry, and judicial contexts. It then discusses the underlying policy arguments that favor and oppose the unrestricted use of sound recordings in composition infringement trials. Finally, it marshals all of this context into a proposed “Triad” judicial framework that explicitly links a court’s inquiry into the “compositionality” of a recorded element to litigants’ burdens in seeking to admit, or preclude, that element as evidence of substantial similarity among compositions.
      PubDate: Thu, 30 Apr 2020 14:33:10 PDT
  • Bounty Hunters For Algorithmic Cartels: An Old Solution for a New Problem

    • Authors: Aleksandra Lamontanaro
      Abstract: In light of the reality that pricing algorithms allow commercial actors to perform all phases of their price-fixing conspiracies without leaving behind trails of traditional incriminating evidence, the scarcity of algorithmic cartels prosecutions is hardly surprising. Given well-documented evidence that the authorities struggle in their efforts to detect even conventional price-fixing cartels, it is imperative to come up with new tools for detecting algorithmic cartels, which have unprecedented potential to harm consumers if left ignored. This Note investigates algorithmic capabilities to collude, as well as legal and technical challenges that governmental authorities face in confronting such collusion. This Note then introduces two proposals to improve the detection of algorithmic cartels: cartel screening and a whistleblower bounty program. The Note argues that, although the optimal solution is to implement the whistleblower bounty program and cartel screening together, it would be more effective and efficient to launch the former before the latter. Importantly, by implementing the whistleblower bounty program before cartel screening, governmental authorities would gain the expertise necessary to enforce antitrust laws without impeding innovation.
      PubDate: Thu, 30 Apr 2020 14:33:04 PDT
  • Trademark Vigilance in the Twenty-First Century: An Update

    • Authors: Peter S. Sloane
      Abstract: The trademark laws impose a duty upon brand owners to be vigilant in policing their marks, lest they be subject to the defense of laches, a reduced scope of protection, or even death by genericide. Before the millennium, it was relatively manageable for brand owners to police the retail marketplace for infringements and counterfeits. The Internet changed everything.In ways unforeseen, the Internet has unleashed a tremendously damaging cataclysm upon brands—online counterfeiting. It has created a virtual pipeline directly from factories in China to the American consumer shopping from home or work. The very online platforms that make Internet shopping so convenient, and that have enabled brands to expand their sales, have exposed buyers to unwittingly purchasing fake goods which can jeopardize their health and safety as well as brand reputation.This Article updates a 1999 panel discussion titled Trademark Vigilance in the Twenty-First Century, held at Fordham Law School, and explains all the ways in which vigilance has changed since the Internet has become an inescapable feature of everyday life. It provides trademark owners with a road map for monitoring brand abuse online and solutions for taking action against infringers, counterfeiters and others who threaten to undermine brand value.
      PubDate: Thu, 30 Apr 2020 14:32:57 PDT
  • The All Substantial Rights Doctrine: A Second Look

    • Authors: Mark J. Abate et al.
      PubDate: Thu, 30 Apr 2020 14:32:51 PDT
  • Movements, Moments, and the Eroding Antitrust Consensus

    • Authors: Michael Wolfe
      Abstract: Timothy Wu, The Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports, 2018). $14.99.Timothy Wu’s book, The Curse of Bigness, offers a brief history on and critical perspective of antitrust law’s development over the last century, calling for a return to a Brandeisian approach to the law. In this review-essay, I use Wu’s text as a starting point to explore antitrust law’s current political moment. Tracing the dynamics at play in this debate and Wu’s role in it, I note areas underexplored in Wu’s text regarding the interplay of antitrust law with other forms of industrial regulation, highlighting in particular current difficulties in copyright law as one of the underlying tensions driving popular discontent with the major technology firms or “tech trusts.” I consider the continuing influence of Robert Bork’s The Antitrust Paradox, now more than forty years old, and how the current reform movement might execute a shift as lasting and substantial as the one Bork spearheaded with his book.
      PubDate: Thu, 30 Apr 2020 14:32:45 PDT
  • Down the Rabbit Hole: Applying a Right to Be Forgotten to Personal Images
           Uploaded on Social Networks

    • Authors: Eugenia Georgiades
      Abstract: The right to be forgotten has been the subject of extensive scrutiny in the broad context of data protection. However, little consideration has been given to the misuse of personal images that are uploaded on social networks. Given the prevalent use of online and digital spaces, social networks process and use various forms of data, including personal images that are uploaded by individuals. The potential for misuse of images is particularly acute when users upload images of third parties. In light of the European Union’s enshrinement of the “right to be forgotten” amid provisions of the General Data Protection Regulation that tighten protections for Internet users’ privacy, this Article examines whether the European “right to be forgotten” is a model that could be adopted, specifically in Australia, and perhaps elsewhere, as a mechanism to protect against the misuse of people’s images within social networks.
      PubDate: Thu, 30 Apr 2020 14:32:39 PDT
  • An Instance of Open Hardware: A Different Approach to Free and Open Source
           Hardware Licensing

    • Authors: Timothy Murphy
      Abstract: As open source software (“OSS”) has become more prevalent, and more widely accepted, many different OSS licenses have proliferated to provide different licensing constructs for licensors and licensees. The most popular OSS license is the GNU General Public License (“GPL”), which is protective of author rights and intended to foster an open software community. Because software source code and object code files are primarily protected by copyright, the options for license terms are relatively straightforward and well-known. To the extent patent rights become an issue, various additional provisions have been proposed to address that issue in the context of the overall, copyright-focused license.By contrast, open hardware (“OHW”), a relatively new entrant to the open source arena, does not have a robust ecosystem of potential licenses. Because of the many different types of OHW and the different types of intellectual property that are applicable at each stage of the OHW development cycle, crafting a single license to govern all aspects of OHW has proven difficult.This Article will explore the technical environment for OHW and the underlying principles and drivers of the open source community. The applicability of different forms of intellectual property at each stage of the OHW design/productization cycle will be discussed, along with the accompanying challenges presented by OHW. Finally, the Article will review existing licenses before proposing a new licensing approach that focuses on permissive instantiations of OHW and distribution in non-editable form to provide a different approach to building a robust OHW community.
      PubDate: Thu, 30 Apr 2020 14:32:33 PDT
  • The Prison of Convenience: The Need for National Regulation of Biometric
           Technology in Sports Venues

    • Authors: Kirsten Flicker
      Abstract: In recent years, biometric data has crept its way into sports venues. In 2015, Major League Baseball began to use fingerprinting at stadium entrances. More recently, reporters have alerted spectators to the use of facial recognition technology in arenas such as Madison Square Garden. Proponents of these developments insist that the technology conveniences spectators, increases venue security, and enhances the overall spectator experience. Yet these claims fail to take into account the possibility of irremediable data breaches, the inaccuracies in facial recognition technology, and the privacy and unfair and deceptive trade practice concerns this technology raises. Further, there is an overarching concern about the lack of regulation of biometric data. This Note examines the benefits and concerns of biometric technology as well as the options for regulating it. Ultimately, this Note finds that national regulation of biometric technology would best serve sports spectators. In particular, this Note recommends a uniform standard for venues in all states that requires transparency of biometric data policies, and protection of spectator data.
      PubDate: Wed, 18 Mar 2020 12:32:34 PDT
  • Fiddling with Federal Circuit Precedent: The Commercial and Qualitative
           Impact of Recent Supreme Court Reversals on the U.S. Patent System

    • Authors: Christopher J. Hamersky
      Abstract: Prior to 2006, the Court of Appeals for the Federal Circuit enjoyed a fairly laissez-faire relation with the Supreme Court of the United States, enabling it to develop a patent law jurisprudence that patent practitioners could confidently rely on given that it had remained relatively stable for several decades. However, in 2006, the Supreme Court reviewed eBay v. MercExchange and subsequently began a string of frequent Federal Circuit reversals that have caused significant change to the U.S. patent system. Whereas the Supreme Court rarely took up patent appeals in the Federal Circuit’s early history, it now routinely reviews patent questions each term and often reverses Federal Circuit precedent to fundamentally change the patent law jurisprudence.This Note endeavors to review several of the most impactful decisions from the last two decades of patent law jurisprudence in order to showcase the extent to which prior patent norms were upended. In juxtaposing these highlighted, fundamental changes in U.S. patent jurisprudence against the different protections and litigation procedures offered in jurisdictions abroad, this Note stresses the importance of immediate congressional action to rectify an apparent decline in the U.S. patent system and notes what concerns to specifically address in order to repair the system as a whole.
      PubDate: Wed, 18 Mar 2020 12:32:15 PDT
  • Anything You Can Use, I Can Use Better: Examining the Contours of Fair Use
           as an Affirmative Defense for Theatre Artists, Creators, and Producers

    • Authors: Benjamin Reiser
      Abstract: Broadway is booming. In a post-Hamilton world, ticket sales and attendance records for the commercial theatre industry continue to break season after season. At the same time (and perhaps not so coincidentally), litigation against theatre artists, creators, and producers has surged, especially in the realm of copyright infringement. Many theatre professionals accused of infringement in recent years have employed the doctrine of fair use—codified at 17 U.S.C. § 107—as an affirmative defense against such claims. This Note explores cases involving theatre professionals in which fair use was examined and contends that they collectively reflect broader historical trends in fair use jurisprudence. In particular, this Note argues that the fair use doctrine remains analytically unclear and difficult to follow and proposes that the transformative use inquiry—which was articulated in 1994 by the Supreme Court in Campbell v. Acuff-Rose Music, Inc.—be abandoned in future fair use analyses in favor of expressly following the four statutory factors enumerated in 17 U.S.C. § 107. Lastly, this Note directly addresses theatre artists, creators, and producers, and advises them that when writing, developing, or mounting a new theatrical production, any reliance on the fair use doctrine ought to be avoided. Instead, alternative avenues should be explored in order to circumvent copyright ownership challenges.
      PubDate: Wed, 18 Mar 2020 12:31:56 PDT
  • Caveat Vendor: A Call to Reform the Scope of Rights of Withdrawal for
           Off-Premises Contracts Under U.S. Consumer Protection Laws with Respect to
           the Auction of Art

    • Authors: Sarah Fabian Maramarosy
      Abstract: As sales of art at auction become increasingly popular and accessible, an overlooked consumer right may cause sellers of art to get “burned.” At its core, the auction process is intended to establish the price of a difficult-to-value object of art, therefore, the underlying philosophy of an auction is that sales are final. However, cooling-off rules in U.S. off-premises contracts are broad enough that auction house contracts can potentially fall within the ambit of these rules, giving rise to the consumer’s right to cancel the contract.Arguably, permitting consumers to cancel in remorse undermines the premise of an auction and may be detrimental to the market value of the artwork, the auctioneer’s business, and by extension the consumer. Cooling-off rules are ineffective in the context of art auctions because these rules were not drafted with an understanding of the mechanics of the auction process or the characteristics of the art market, including the subjective value of art. In fact, applying these rules to art transactions would be consumer protection overreach. These rules were designed to redress high pressure sales techniques used by door-to-door salesmen who cornered vulnerable consumers at home. By contrast, the relationship between an auction house and a consignor or winning bidder is very different: the balance of bargaining power favors the consumer. Further, for the auction process to be effective, the consumer cannot be permitted to walk away from the sale out of remorse.Despite some ambiguity in the U.S. legal framework, it is important to not assume that these cooling-off rules do not apply to auction house contracts. Such a mistake could extend the prescribed cooling-off period indefinitely, thus aggravating the costs of administering returns. Ultimately, the art world will be handicapped by the uncertainty of the application of these rules, therefore, the time for reform is now. It is upon stakeholders in the artworld, who have industry expertise that regulators and legislators are unlikely to have, to proactively petition the Federal Trade Commission to develop new approaches to the right to withdraw as it relates to art transactions.
      PubDate: Wed, 18 Mar 2020 12:31:37 PDT
  • Tear Down This Wall': The Destruction of Sanctioned Street Art Under
           U.S. and Italian Law

    • Authors: Sara Rosano et al.
      Abstract: The United States and Italy are important countries for art and artists, including “street art”—also known as “aerosol art.” How does the law treat street artists in the two countries' Specifically, what are the legal consequences if an artist creates aerosol art on a wall or building with the property owner’s permission, and the property owner tears down the wall or building, thus destroying the artwork' In the United States, the 2018 decision in the 5Pointz case provided a detailed analysis of the applicable law; the court found in favor of a group of aerosol artists against the property owner. How would the same situation be adjudicated in Italy' Which party’s interests would be protected' It appears that, even though works of street art are generally copyrightable in Italy, the conflict between property owners and street artists would most likely be resolved in favor of the property owner. The authors recommend that Italy enact a statute affirmatively protecting sanctioned street art.
      PubDate: Wed, 18 Mar 2020 12:31:18 PDT
  • Substantial Similarity and Junk Science: Reconstructing the Test of
           Copyright Infringement

    • Authors: Robert F. Helfing
      Abstract: As the standard of copyright infringement, “substantial similarity” is an ambiguous concept that produces unpredictable decisions often inimical to the purposes of copyright law. This Article explains the deficiencies of infringement tests based upon that standard. It also provides an innovative interpretation of copyright protection and presents a new test of infringement designed to directly determine whether that protection has been violated.
      PubDate: Wed, 18 Mar 2020 12:31:00 PDT
  • Double Jeopardy: Patents of Invention as Contracts, Invention Disclosure
           as Consideration, and Where Oil States Went Wrong

    • Authors: N. Scott Pierce
      Abstract: Patents in England were once favors granted by the King with the requirement that the subject matter be practiced, or worked, for the benefit of the public. However, by the late eighteenth century patents were viewed as contracts with the government. Concomitant with this shift, the requirement to practice an invention was replaced by submission of a written specification disclosing to the public how to work the subject matter of the patent. In essence, advancement of the public good by grant of an exclusionary right to practice an invention at royal discretion was substituted with public disclosure as consideration for grant of that right by contract. The contractual nature of patents that evolved in England was adopted in the United States shortly after its founding.Disclosure of an invention can be offered as consideration by an inventor because, unlike most substance of sovereign dispensation, it is not otherwise available. Also unlike favor, disclosure of an invention cannot be withdrawn once it has been made. The Supreme Court in Oil States v. Greene’s Energy Group failed to acknowledge these distinctions by improperly construing nineteenth century dicta to conclude that patents “take from the public rights of immense value” and by asserting more recent dicta that inter partes review is nothing but “a second look” at an earlier administrative decision. Dismissing the genesis and irretrievable nature of invention disclosure by implying that patent rights are taken from the public by virtue of patent grant obliterates the distinction made over two hundred years ago that patents are not privileges subject to sovereign volition.The Supreme Court’s new understanding of patents causes an overlap of Article I “legislative courts” under the purview of the executive branch, with “constitutional courts” controlled by Article III of the Constitution. The result is double jeopardy for patentees and reduced certainty in the business community, both of which are anathema to the intent behind creation of ex parte reexamination, introduced under the Bayh–Dole Act of 1980, and extending to the several proceedings inaugurated with the America Invents Act, such as inter partes review.
      PubDate: Wed, 18 Mar 2020 12:30:40 PDT
  • AI-Generated Fashion Designs: Who or What Owns the Goods'

    • Authors: Caen A. Dennis
      Abstract: As artificial intelligence (“AI”) becomes an increasingly prevalent tool in a plethora of industries in today’s society, analyzing the potential legal implications attached to AI-generated works is becoming more popular. One of the industries impacted by AI is fashion. AI tools and devices are currently being used in the fashion industry to create fashion models, fabric designs, and clothing. An AI device’s ability to generate fashion designs raises the question of who will own the copyrights of the fashion designs. Will it be the fashion designer who hires or contracts with the AI device programmer' Will it be the programmer' Or will it be the AI device itself' Designers invest a lot of talent, time, and finances into designing and creating each article of clothing and accessory it releases to the public; yet, under the current copyright standards, designers will not likely be considered the authors of their creations. Ultimately, this Note makes policy proposals for future copyright legislation within the United States, particularly recommending that AI-generated and AI-assisted designs be copyrightable and owned by the designers who purchase the AI device.
      PubDate: Wed, 29 Jan 2020 16:25:47 PST
  • Fashion’s Destruction of Unsold Goods: Responsible Solutions for an
           Environmentally Conscious Future

    • Authors: Ariel Elia
      Abstract: Over the past two years, headlines of fast-fashion and luxury brands burning their merchandise have flooded media outlets. While this came as a shock to the general public, it has actually been a standard industry practice for decades. As societal norms are leaning more towards environmentally conscious practices, destroying unsold products is no longer viewed as an acceptable option. Brands are facing increased scrutiny related to their environmental impact—such as the amount of textile waste that ends up in a landfill—and how they address the issue. While the media have criticized brands for these practices, they have not suggested long-term solutions to resolve the problem. Brands are left in the dark without a road map showing them how to modernize their systems. Furthermore, when governments introduce new bills focused on textile waste, brands experience added pressure. France is in the process of requiring brands to recycle or reuse their unsold goods by January 2020. However, there is no one-size-fits-all solution for any brand or country: what may work for a fast-fashion brand will not necessarily work for a luxury brand. In the same vein, what may work for France may not work for the United States. This Note explores a number of potential solutions to this problem which range from legal solutions, to reusing, manufacturing, technological, and crisis management solutions. Brands must start to address this issue within their supply chain in a thorough and transparent manner, as this is not a fleeting trend.
      PubDate: Wed, 29 Jan 2020 16:25:44 PST
  • Fashion(ing) a Political Statement: A Review of the Legal & Social Issues
           that Arise from Banned Political Clothing and Other Controversial Fashion
           Items in Light of the U.S. Supreme Court’s Decision in Minnesota Voters
           Alliance v. Mansky

    • Authors: Joyce Boland-DeVito
      Abstract: Does the U.S. Supreme Court believe that the Free Speech Clause of the First Amendment includes freedom of expression in our clothing' The answer is yes! This Article will show that fashion can make a strong political statement (or misstatement) in the court of law as demonstrated by the U.S. Supreme Court’s recent decision striking down Minnesota’s ban on wearing “political apparel” to vote in Minnesota Voters Alliance v. Mansky. The discussion of this case will include quotes from J. David Breemer, Esq., the attorney who represented the Minnesota Voters Alliance. This Article will examine related U.S. Supreme Court cases that uphold Constitutional protections not just in political speech and association, but also in clothing.If, despite the Supreme Court’s holdings in these cases, you have any doubts about whether fashion can make a strong statement with social and legal ramifications, you need only consider the court of popular opinion—for instance, social media. Social media, as well as traditional media, have openly criticized designers who have created insensitive items such as Prada’s PRADEMALIA charms, Katy Perry’s shoes, and a particular Gucci sweater—all of which appeared to portray racist black-faced images. Another issue— accusations of cultural appropriation—has impacted an African- American rapper Lil Nas X, who was accused of stealing (white) “cowboy culture,” as well as Kim Kardashian, who has been accused of appropriating West African hairstyles and of having chosen a Japanese name (“Kimono”) for a new business venture (which was eventually dropped). Also, media backlash should be expected when someone designs clothes using real fur or ivory and/or the clothing is made by children or under unsafe conditions.The U.S. Supreme Court may continue to support our rights under the First Amendment Free Speech Clause to freedom of expression in our clothing, but that does not mean that society protects us from the social or economic ramifications from making such statements with our fashion choices. Remember that Oscar Wilde famously wrote in An Ideal Husband that “fashion is what one wears oneself. What is unfashionable is what other people wear.”
      PubDate: Wed, 29 Jan 2020 16:25:41 PST
  • Fame: Ownership Implications of Intellectual Property and Agency Law

    • Authors: Max Stul Oppenheimer
      Abstract: In the pre-internet era, it was difficult to reach a wide audience without the help of a professional organization, so as a practical matter control typically rested with distributors rather than with talent. Now that direct public distribution is easy and inexpensive, distributors’ practical control has greatly diminished, and it is therefore important to consider the legal principles that govern the control of the use of “fame.” This Article defines fame as a bundle of intellectual property rights and analyzes the ownership of those rights under intellectual property and agency theories.
      PubDate: Wed, 29 Jan 2020 16:25:38 PST
  • The New Cybersquatters: The Evolution of Trademark Enforcement in the
           Domain Name Space

    • Authors: Michael Karanicolas
      Abstract: The domain name space has become a particularly contentious area of trademark enforcement as a result of the growth of online commerce, an intense competition for popular domain names, and new conceptual challenges stemming from the borderless and textual nature of the medium. In response, the Internet Corporation for Assigned Names and Numbers (“ICANN”), a global non-profit which oversees the domain-name space, has implemented a highly sophisticated set of rights-protection mechanisms. This Article examines the scope of trademark protections applied under ICANN’s rights protection mechanisms to demonstrate that they have evolved far beyond their traditional consumer protection function; indeed, they have morphed into offensive brand management tools, whose application in the global domain name space vastly exceeds the protections that are available under domestic legal frameworks. The Article begins by introducing ICANN and its main trademark protection instruments, namely the Uniform Dispute Resolution Policy, the Uniform Rapid Suspension, and the Trademark Clearinghouse, before demonstrating the divergence between protections under these systems and the protections under domestic legal frameworks. The result is that trademark owners turn to ICANN for rights and remedies that would not be available from ordinary sovereigns, embodying a major expansion of trademark protections. The Article concludes by outlining the contours of ongoing discussions re-examining these mechanisms, and the challenges in curbing this maximalist view of trademark law.
      PubDate: Wed, 29 Jan 2020 16:25:35 PST
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