1 《约翰马歇尔知识产权法评论》(2011年夏季,第4期) - 知识产权与竞争法研究网

《约翰马歇尔知识产权法评论》(2011年夏季,第4期)

   发布时间:2011-08-06 来源:http://www.jmripl.com

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Volume 10 Issue 4 Summer 2011

Articles

  Hal Milton:Recognition and Presentation of a “New Result” to Reach a Safe Harbor
10 J. Marshall Rev. Intell. Prop. L. 583 (2011)
A safe harbor where a patent has the best chance of survival in a litigation storm is only established by dividing the preparation of a patent application into two separate categories:  the recognition of the new result and the presentation of the new result throughout the patent application.  The two famous cases of Great Atlantic and Pacific Tea Co. v. Supermarket Equipment Corp. and Graham v. John Deere Co. illustrate how the implementation of recognition and presentation might have prevented litigation or saved the patents.

  Jacob H. Rooksby:University Initiation of Patent Infringement Litigation
10 J. Marshall Rev. Intell. Prop. L. 623 (2011)
While the literature examining university engagement in patenting and technology transfer is quite developed, commentators largely have overlooked university involvement in patent litigation.  This article focuses on one aspect of that involvement—initiation of patent infringement litigation—by providing a quantitative and textual analysis of patent infringement actions initiated by universities from 2009 through 2010.  Suing for-profit actors for money may seem antithetical to the mission of not-for-profit universities, but in fact universities filed over fifty such cases in the studied time period.  Examination of these cases reveals a remarkable similarity between the litigation behavior of universities and for-profit actors, as well as complex and varied relationships between universities, their licensees, and research foundations closely affiliated with universities.  These findings situate within a larger conversation over the commercial, political, and social implications of science, education, and innovation and suggest that further attention to the activity is warranted, given the substantial public investments in both public and private higher education that result in patentable inventions.

  William Henslee & Elizabeth HensleeYou:Don’t Own Me: Why Work for Hire Should Not Be Applied to Sound Recordings
10 J. Marshall Rev. Intell. Prop. L. 695 (2011)
Many recording artists and songwriters never reap the rewards of their work.  America’s first professional songwriter died in poverty at the age of thirty-seven.  At the Congressional level the situation has described recording artists as “one group of creators who get ripped off more than anybody else in any other industry”.  As we approach 2013, there will be a new line of cases that deal with authors of sound recordings attempting to terminate their copyright assignment to the record companies.  While the most efficient and frugal solution would be legislative action, the most probable outcome is expensive, fact-intensive litigation.  Congress and the Supreme Court have emphasized the value of predictability in copyright ownership.  In this situation, Congress has fallen short of that goal.  Sound Recordings do not fit the definition of work made for hire under the 1976 Copyright Act.  While analyzing the 2013 terminations, courts should not overlook the congressional intent of creating an inalienable termination right for authors.

  Lee B. Burgunder:Trademark Protection of Live Animals: The Bleat Goes On
10 J. Marshall Rev. Intell. Prop. L. 715 (2011)
The Wall Street Journal recently reported that the owner of a Swedish restaurant was suing other businesses for violating its registered trademark, which surprisingly consists of live goats on a grass roof.  The PTO and the courts have steadily enlarged the set of trade dress features that might serve as trademarks, and there is no reason, in theory, to treat live animals differently.  Nevertheless, the PTO likely made a mistake in this instance when it agreed to register the mark.  This article evaluates the requirements for protecting trade dress with trademarks, and explains why a Swedish restaurant should not have exclusive rights to put goats on a roof.

  James Juo:Notice That Registered Trademark in the Window?
10 J. Marshall Rev. Intell. Prop. L. 736 (2011)
The letter R enclosed in a circle (i.e., the “®” symbol) is a well-known form of statutory notice for a trademark registered with the United States Patent and Trademark Office. This helps ensure that the public will identify a mark as a source identifier rather than as a generic term for a product or service. Although not mandatory, failure to display the registration symbol or another form of statutory notice with a registered trademark may limit the monetary remedies recoverable in a lawsuit for infringement of that registered mark under the Lanham Act. Absent statutory notice, damages for infringements and other violations under the Lanham Act would be limited to an accounting period beginning after the defendant received actual notice of the registration. While § 43 of the Lanham Act also allows recovery of damages for violations of unregistered marks, the recoverable damages for a trademark registrant may still be limited even with respect to these unregistered rights in connection with a registered mark. Otherwise, the registrant could recover the same damages for the same mark regardless of whether statutory notice was given. A trademark registrant also may elect to recover statutory damages against a counterfeit of the registered mark instead of actual damages. Although a few courts have held that the statutory notice requirements of the Lanham Act do not apply to the recovery of statutory damages for counterfeiting, this would appear to be contrary to the public policy of encouraging registrants to give statutory notice of trademark registrations. This article will discuss the requirements for actual notice and statutory notice of a trademark registration, and then discuss how this applies to the recovery of damages in connection with that registration.

  Emir Aly Crowne:The Utilitarian Fruits Approach to Justifying Patentable Subject Matter
10 J. Marshall Rev. Intell. Prop. L. 753 (2011)
This article proposes an approach to justifying patentable subject matter that uses Locke as its starting point, and utilitarianism as its end.  The patent eligibility of any given subject matter must be a mixture of labour and certain utilitarian incentives.  If these elements are present—and if the subject matter in question can be made to fit within the definition of invention (even if slightly uncomfortably)—then courts and tribunals should aim to accommodate it.

Comments

  Cole C. Hardy:Twitter's Trademark Problems: Is the Anticybersquatting Consumer Protection Act Outdated?
10 J. Marshall Rev. Intell. Prop. L. 764 (2011)
Under the Lanham Act there is no remedy for individuals when imposters register user names with corresponding post-domain paths containing protected trademarks on social network websites.  While Twitter temporarily experimented with its own verification process, it currently does not help users of its site distinguish trademark owners’ pages from the imposters’ pages.  Current law discouraging such activity only applies to domain names.  This article proposes that with a minor change to the ACPA, the Lanham Act could be updated to help trademark owners protect their rights when infringing activity is experienced with social networking handles and the corresponding post-domain paths.

  Ian Rubenstrunk:The Throw Down Over Takedowns: An Analysis of the Lenz Interpretation of 17 U.S.C. § 512(f)
10 J. Marshall Rev. Intell. Prop. L. 792 (2011)
Recently, a YouTube user and mother of two, Stephanie Lenz, filed a lawsuit against Universal Music Corporation which had the potential for broad impact on the internet.  Everyone from politicians, to teachers, to musical artists could have gained more protection of their rights as internet users.  With millions of people having access to the internet and YouTube “vloggers” reaching the million mark in subscribers, the court’s interpretation of 17 U.S.C. § 512(f) could have had a significant impact.  The issue in the case was what “any damages” meant in a clause creating liability for a party that incorrectly has material removed from a website.  The court, however, did not take a position consistent with the intent of Congress when it passed the DMCA, adding § 512(f).  This comment suggests that other courts reject the Lenz court’s narrow interpretation and instead apply a broad interpretation that could allow greater recovery.

  Andrea Stein Fuelleman:Right of Publicity: Is Behavioral Targeting Violating the Right to Control Your Identity Online?
10 J. Marshall Rev. Intell. Prop. L. 811 (2011)
Behavioral targeting (“BT”) is an advertising technique that receives a great deal of attention due in part to the balkanized self-regulatory policies that address consumer protection issues.  The majority of the self-regulation policies, including the BT principles proposed by the Federal Trade Commission (“FTC”) focus on privacy issues but fail to discuss the impact BT may have on the right to control the commercial use of one’s identity.   In discussing the right of publicity, many legal scholars agree that everyone has a right to control the commercial use of his or her identity, regardless of his or her status as a celebrity.  Further, some theories of determining what constitutes one’s “identity” would cover the information that is collected for BT purposes.  Under this theory, BT practices may be violating more legal issues than those addressed in the current self-regulatory policies.  Often, when regulating activities on the internet, jurisdictional boundaries are blurred and federal mandated rules are more effective than self-regulatory ones.  This comment discusses how the current self-regulatory approach of BT may overlook legal issues, mainly one’s right of publicity.  Additionally, this comment proposes that the FTC enact a new rule to enforce best BT practices to avoid right of publicity violations when utilizing this advertising tool.

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