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.
Rebecca S. Eisenberg
This chapter considers the relationship between intellectual property (IP) and public health with a primary focus on US patent law and international law. The first part focuses on health innovation and considers the limits of patents and other exclusionary rights as a source of incentives for innovation to address certain public health priorities. It considers four categories of innovation that present a mismatch between public health priorities and private incentives for innovation: vaccines, anti-infectives, neglected diseases, and nonexcludable innovations. The second part considers conflicts between IP and public health arising from restrictions on access to patented technologies. It examines market and policy mechanisms to facilitate access to patented technologies, including price discrimination, public and private insurance, price controls, and legal restrictions on patents.
Stephen M. Maurer
Classical proofs for the efficiency of markets do not apply to innovation. Since the 1960s, economists have worked to construct a theoretical framework for deciding when patent incentives do and do not make society better off. This chapter reviews the literature’s main findings and asks how well the legal system implements them. It begins by reviewing how patents balance the benefits of faster innovation against the burden of monopoly. It then shows how these arguments change in more complicated models where patents must also coordinate effort across multiple independent inventors. It also asks how faithfully current patent doctrines implement economists’ insights in practice. It explores how our patents framework is extended to other bodies of law, including copyright, trademark, and competitions policy. Finally, it concludes with proposals for aligning current IP law more closely with theory.
Intellectual property is getting queerer. Although intellectual property is most often associated with theories of economic rationality or romantic individualism, there are increasingly prominent strands of IP theory that reflect the insights of queer theory. Although IP and queer theory are rarely in direct conversation, this chapter shows several nascent intersections between these two fields, including: the cultural contingency of creativity, the unpredictable trajectories of social regulation, and the co-constitutive nature of intellectual life and material culture. IP theory increasingly understands that the cultural discourse shapes the distribution of wealth, happiness, and political power in the physical world, and vice versa. This chapter emphasizes both the broad sociocultural implications of IP’s regulatory interventions and the underappreciated jurisprudential value of queer theory.
Roger Allan Ford
The growth of sports analytics has made professional teams more and more reliant on proprietary data and algorithms, which are only valuable as long as they remain unknown to competitors. Teams are, however, relatively poorly equipped to protect these secrets. This chapter reviews five options available to teams looking to protect their secret information: league rules and norms, nondisclosure and noncompete agreements, trade-secrecy law, criminal law, and information-security efforts. None of the legal options are perfect, since breaches can be difficult to detect and legal remedies expose teams to unwanted publicity and risks of further breaches. Teams, then, should focus their efforts on building robust security systems to prevent problems from arising in the first place. The chapter concludes by discussing trends that are likely to increase the importance of information security in professional sports.
This chapter situates the claims for protection of traditional knowledge in the international intellectual property (IP) context. Drawing on examples, it discusses the meaning of “traditional knowledge” and how the goals and means of protecting that knowledge do not fit within the framework of IP law. In order to address the overlap with IP and provide protection against misuse of traditional knowledge, a number of international bodies have been involved in negotiations and treaty drafting. The chapter discusses those developments, and concludes that even though international resolution looks unlikely in the short-term, the protection of traditional knowledge will continue to feature in international IP debates until a minimum level of agreement at least reached. In order to attain such agreement, there needs to be relevant national laws and, as a practical matter, sufficient investment in the innovation of traditional knowledge in order to deliver the value of protection to its holders.