Alexandra J. Roberts
This chapter examines the protectability and registration of athletes’ names, nicknames, and catchphrases as trademarks under federal law. More and more athletes are seeking to register their names, nicknames, catchphrases, and fan slogans as federal trademarks in an attempt to monetize their fame and cultural capital. However, their goals in filing those applications are not often in accord with the traditional goals of trademark law. After providing an overview on trademark use and registration, the chapter discusses some of the limitations for trademark protection, including those based on distinctiveness, false association, and confusion. It also explains how trademark doctrines affect athletes’ ability to protect certain words or phrases as trademarks. Finally, it considers how the general goals of trademark law correspond to an athlete’s desire to protect words and phrases associated with him or her and prevent others from appropriating them.
Richard A. Epstein
This chapter puts forward a comprehensive framework for evaluating property regimes for both physical and intellectual property resources. It starts with an account of the trade-off between common and private property regimes, noting that the former is appropriate, as a first approximation for resources that facilitate communication and transportation, where holdout problems dominate externality constraints. But where high levels of investment are needed, and coordination problems are low, private property, as bounded by laws of trespass, nuisance and infringement now tend to dominate. There are no rules of acquisition for an open-access regime. But for private property in all its forms, the common and civil law rules of occupation avoid virtually all the complications that stem from Locke’s erroneous labor theory of acquisition. The chapter then explores the rules governing duration, exclusion, remedies, and alienation in multiple private property interests, including the major forms of intellectual property.
The CoExistence of Copyright and Patent Laws to Protect InnovationA Case Study of 3D Printing in UK and Australian Law
Dinusha Mendis, Jane Nielsen, Diane Nicol, and Phoebe Li
The chapter considers the challenges faced by intellectual property (IP) laws, in particular copyright and patent laws, in responding to emerging technologies and innovation like 3D printing and scanning. It provides a brief introduction to 3D printing before moving to detailed analysis of relevant UK and Australian jurisprudence. Through this comparative analysis, the chapter explores whether copyright and patent laws can effectively protect innovation in this emerging technology, including consideration of both subsistence and infringement. The chapter suggests that 3D printing, like most other technologies, has a universal reach, yet subtle differences in the wording and interpretation of IP legislation between jurisdictions could lead to anomalies in levels of protection. It explores the possibility of a sui generis regime of IP protection for 3D printing, but submits that a nuanced reworking of existing regimes is, in the vast majority of circumstances, likely to be a sufficient response.
This chapter offers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of fixation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of intermediaries, and new copyright obligations concerning technological protections and copyright management information. It concludes with some observations concerning the role of copyright in promoting creativity and free expression.
Eun-Joo Min and Johannes Christian Wichard
This chapter identifies national and regional approaches adopted to ensure that intellectual property (IP) rights are enforceable in a global environment constituted by territorial rights that rely on local courts. It discusses reconsideration and recalibration of the private international law (PIL) rules that govern IP relationships in relation to jurisdiction, applicable law and recognition and enforcement. The chapter also explores the emergence of new fora for cross-border IP enforcement, through either trade or investment arrangements or privately designed alternative dispute resolution (ADR) mechanisms. It concludes by underscoring the continued relevance of the territoriality of IP rights, and the importance of coherence and mutual consistency between the different legal systems and regimes of cross-border IP enforcement.
This chapter surveys the legal protection of industrial designs, understood as the protection of the appearance of articles of manufacture. It discusses the definition of “design” according to both the European Union (EU) and the United States (US). It examines the international instruments that form the foundation of industrial design law, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Paris Convention, and the Berne Convention, among others. It then focuses on the various areas of intellectual property (IP) law that make up design law, including sui generis design protection law, patent law, copyright law, and trademark law among others, with particular attention on these aspects of design law as they feature in the US and the EU.
Drugs, Biologics, and Devices: FDA Regulation, Intellectual Property, and Medical Products in the American Healthcare System
This article examines the basic framework of the U.S. Food and Drug Administration (FDA)’s approval process for drugs, biologics, and medical devices within the broader context of the country’s healthcare system. The article also discusses intellectual property protections and statutory exclusivity periods for medical products and their effect on the market entry of follow-on therapies. It then considers a number of current developments shaping FDA regulation of pharmaceuticals and medical devices, including the rise of personalized medicine, the strengthening of First Amendment commercial speech protections, and the agency’s expanding involvement in the practice of medicine. Finally, the article examines how the FDA must increasingly share its gatekeeping role with third-party payers and considers the agency’s future in light of this phenomenon.
This chapter provides both an overview of the history of intellectual property (IP) laws in Australia and New Zealand, and pathways into existing and emerging scholarship in this area. It discusses convergence and divergence in copyright, patent and trademark legislation and case law between Britain and these two former colonies, from early colonial experimentation to the long period of closely mirroring UK reforms. In the late twentieth century, both countries developed more distinctive IP laws, and diverged on a range of fundamental questions. In the twenty-first century, trade policy—trans-Tasman and global—has created pressures for convergence, but as the countries have grown apart, more perhaps than many realize, so there is considerable resistance to unifying projects. The chapter closes with a discussion of the different trajectories in how IP and indigenous cultural and knowledge systems interface in Australia and New Zealand.
This chapter reviews the emergence of intellectual property (IP) norms in the areas of copyright, trademarks, patents, and designs in Canadian law from the early days of the Dominion’s complex relationship with British IP statutes and policy to a time of progressive independence from those statutes. It then reviews more recent changes, some of which were made to bring Canada’s laws into line with major international registration systems. Canada has also been ready to experiment with variations on IP themes. This is visible both in statutes and in decisions by the Supreme Court of Canada. The impact of the bijural nature of Canada’s legal system and its proximity to the United States are also discussed: Canada has integrated civil law notions into an edifice constructed mostly of common law bricks, and must confront demands from its most important trading partner in adapting its intellectual property framework.
While this chapter considers the significant differences between the Central and Eastern European countries, their common pasts of centrally planned economies and difficulty of transitioning to a market economy justifies reviewing their intellectual property (IP) laws together. The overwhelming majority of these countries are party to the treaties—as well as EU directives—which determine the basic elements of their national IP laws. Nevertheless, certain features of their former “socialist” IP systems may also play a part in, for example, their regulation of original ownership and transferability of rights; their contractual and tariff systems; and their organizational structures, particularly in the field of collective management of copyright. Other specific features have also emerged as a result of the difficult transition processes, such as higher levels of counterfeiting and piracy.