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This book chapter appears in the CAMBRIDGE HANDBOOK ON INTERNATIONAL AND COMPARATIVE TRADEMARK LAW, edited by Jane C. Ginsburg and Irene Calboli (Cambridge Univ. Press 2020). The Chapter provides an overview of the defenses to trademark infringement, dilution, and false endorsement claims that serve the goals of free expression and fair competition. In particular, the Chapter covers the defenses of genericism, functionality, descriptive and nominative fair use, the Rogers test, statutory exemptions to dilution claims, and the questions of whether and how an independent First Amendment defense applies in light of recent Supreme Court decisions. In addition to providing a useful guide to each of these defenses in U.S. law, the Chapter makes several overarching observations about these speech and competition-related defenses. First, that the speech or competition values asserted by the defendants influence the likely success of the claims. Defenses are more successful when the uses are in creative or artistic works, convey relevant information to potential consumers (even in advertising), or are deemed a commercial necessity. Second, that the perceived “reasonableness” of the defendant's use will determine the likely success of the asserted defense. This is true even when the particular defense does not explicitly include such a consideration. Finally, that these defenses serve as an important counterbalance to the broad scope of today's trademark law, which has expanded dramatically over the last century, particularly in the last few decades with the addition of dilution claims to the federal regime. The defenses highlighted in this Chapter provide a powerful antidote to the potential for trademark and related laws to shut down speech and unduly limit competition. The First Amendment and its speech-protective penumbras incorporated into trademark law provide latitude to use others' marks both in commercial and noncommercial speech, but this protection is not without limits. When a use exceeds what is appropriate under the circumstances, and is perceived as primarily profiting from another's goodwill without a corresponding speech benefit, these defenses are unlikely to provide protective shade.
The new edition of this text continues to offer an accessible historical survey and analysis of free-speech issues and cases in the US, also providing a history of free speech in England. In the new edition, the expansion of topics such as free press-fair trial makes the book suitable for journalism and media law courses.
Trade in goods and services has historically resisted territorial confinement, but trademark protection remains territorial, albeit within an increasingly important framework of multilateral treaties. Trademark law therefore demands that practitioners, policy-makers and academics understand principles of international and comparative law. This handbook assists in that endeavour, with chapters describing and critically analyzing international and regional frameworks, and providing comparative perspectives on the substantive issues in trademark law and related fields, such as geographic indications, advertising law, and domain names. Chapters contrast common law and civil law approaches while focusing on the US and EU trademark systems in light of the role these systems have played in the development of trademark laws. Additionally, this handbook covers other jurisdictions, both common law and civil law, on the Asia-Pacific, African, and South American continents. This work should be read by anyone seeking a better understanding of trademark law around the world.
Who controls how one’s identity is used by others? This legal question, centuries old, demands greater scrutiny in the Internet age. Jennifer Rothman uses the right of publicity—a little-known law, often wielded by celebrities—to answer that question, not just for the famous but for everyone. In challenging the conventional story of the right of publicity’s emergence, development, and justifications, Rothman shows how it transformed people into intellectual property, leading to a bizarre world in which you can lose ownership of your own identity. This shift and the right’s subsequent expansion undermine individual liberty and privacy, restrict free speech, and suppress artistic works. The Right of Publicity traces the right’s origins back to the emergence of the right of privacy in the late 1800s. The central impetus for the adoption of privacy laws was to protect people from “wrongful publicity.” This privacy-based protection was not limited to anonymous private citizens but applied to famous actors, athletes, and politicians. Beginning in the 1950s, the right transformed into a fully transferable intellectual property right, generating a host of legal disputes, from control of dead celebrities like Prince, to the use of student athletes’ images by the NCAA, to lawsuits by users of Facebook and victims of revenge porn. The right of publicity has lost its way. Rothman proposes returning the right to its origins and in the process reclaiming privacy for a public world.
Protection for intellectual property has never been absolute; it has always been limited in the public interest. The benefits of intellectual property protection are meant to flow to everyone, not just a limited population of creators and the corporations that represent them. Given this social-utility function, intellectual property regimes must address issues of access, inclusion, and empowerment for marginalized and excluded groups. This handbook defines an approach to considering social justice in intellectual property law and regulation. Top scholars in the field offer surveys of social justice implementation in patents, copyright, trademarks, trade secrets, rights of publicity, and other major IP areas. Chapters define Intellectual Property Social Justice theory and include recommendations for reforming aspects of IP law and administration to further social justice by providing better access, more inclusion, and greater empowerment to marginalized groups.
This ground-breaking book demonstrates that states are not attentive enough to the serious human rights implications of trade mark protection. Important rights to freedom of expression, health, life, benefits from science and culture, privacy, a fair trial and protection from discrimination and hate speech are often insufficiently addressed.
The Model Rules of Professional Conduct provides an up-to-date resource for information on legal ethics. Federal, state and local courts in all jurisdictions look to the Rules for guidance in solving lawyer malpractice cases, disciplinary actions, disqualification issues, sanctions questions and much more. In this volume, black-letter Rules of Professional Conduct are followed by numbered Comments that explain each Rule's purpose and provide suggestions for its practical application. The Rules will help you identify proper conduct in a variety of given situations, review those instances where discretionary action is possible, and define the nature of the relationship between you and your clients, colleagues and the courts.
This all-new Fourth Edition of the benchmark one-volume guide to trademark law is marked by extensive new coverage, including vital analysis of: New trade dress case law interpreting the doctrine of utilitarian functionality in the wake of the Supreme Courts TrafFix decision. New issues before the Supreme Court regarding dilution protection under the Federal Trademark Dilution Act New Internet cases on jurisdiction and the effect of UDRP arbitration decisions on federal litigation. New case law under the recently revised Federal Rules of Evidence. Plus updated material on gray market goods and attorney/client and work product privileges, new tips on reaching settlement agreements, and the latest changes to the T.M.E.P. Filled with dozens of forms, documents, checklists, and color exhibits, Trademark Law provides you with all the field-tested, step-by-step guidance you need to select, search, use, reinforce, renew, defend, and expand trademarks. Comprehensive enough to serve new and experienced practitioners on both sides of trademark disputes.