Toward a More Coherent Doctrine of Trademark Genericism and Functionality: Focusing on Fair Competition

The doctrines of trademark genericism and functionality serve similar functions under the Lanham Act and the common law of unfair competition. Genericism, in the context of word marks, and functionality, for trade dress, bar trademark registration under the Lanham Act and, both under the Act and at common law, render a trademark unprotectable and invalid. In the word mark context, genericism stands for the proposition that certain parts of vocabulary cannot be cordoned off as trademarks; all competitors must be able to use words that consumers understand to identify the goods or services that they are selling. Functionality likewise demands that certain aspects of product design cannot be legally protected as trade dress, as to do so would potentially limit competitors’ ability to make products that work as well at the same price. The core concern, for both doctrines, is or should be the preservation of free and fair market competition. Part I of this Article explains the theoretical parallels between the doctrines of genericism and functionality, and examines the history and purpose of these doctrines. A finding that a word is or has become generic, or that a form of trade dress is functional, negates a mark’s registration and protection under the Lanham Act, as well as under state and common law. Even incontestable marks can be declared invalid, regardless of the passage of time, under either doctrine. The types of trademarks typically at issue when making genericism and functionality determinations—word marks that are, at best, descriptive, or product design functioning as trade dress—are correctly described as weak. The genericism and functionality doctrines therefore play a critical role in marking the boundaries of trademark law. To properly draw those lines, decision makers need to correctly define and understand the theory underlying both doctrines. In Part II, this Article argues that both genericism and functionality, in their practical interpretation and purpose, should more clearly reflect the core principle of protecting fair competition. In particular, the concept of viable, competitive alternatives—either in the form of words or alternative designs—should play an enhanced role in determining whether an erstwhile trademark is generic or functional. The various tests for genericism and functionality currently employed by the courts often attempt to draw formalistic distinctions among categories of words or product features that may confound business owners (and their lawyers) and divert the focus of the courts’ inquiry in such cases away from the core value at the heart of both doctrines: preserving fair competition

Protecting Public Health Amidst Data Theft, Sludge, and Dark Patterns: Overcoming the Constitutional Barriers to Health Information Regulations

Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been lawfully collected for general purposes. Any observer can create a detailed personal diary of an individual or a population by building from a mosaic of inferential data—such as lawfully obtained zip code information, non-regulated health care application data, purchasing patterns, location information, and social media engagement. Using behavioral economics, companies manipulate the public to make unhealthy lifestyle choices and promote health care scams. The FTC has labeled these practices as dark patterns, designed to nudge consumers into overpayments and choices that maximize revenue rather than wellness. The article first addresses the nature of the health care threat posed by the unregulated marketplace and the limited role the FTC plays in stopping unfair and deceptive practices that harm the public. The article next addresses the evolution of commercial speech and the extent to which the FTC will be able to expand its protections in light of recent case law. The article identifies new approaches for the FTC to expand its regulatory protection in a manner consistent with the heightened scrutiny applied by the Supreme Court. Finally, while calling for increased enforcement that meets First Amendment scrutiny, the article also promotes a new governmental strategy to meaningfully fund public health information with sufficient resources to overcome the existing public health disinformation industry to provide accurate, timely, and behaviorally motivating information to the public in order to save lives and promote better health. Recognizing that the police power is insufficient to stem the tide of disinformation, the article calls for a comprehensive approach to producing public health information that benefits all members of the public

Veal: The Rise of Generation Interactive

The purpose of this book is to investigate and discuss the premise that the current generation was constructed to be consumers for a transitional marketplace. As the economy shifted from analog to digital, consumers had to be trained to accept, use and progress within a new economic model through changes in societal and economic patterns. During the course of this book those patterns will be discussed and displayed as a confluence of: Marketplace manipulation, Abusive use of technologies, and Lack of governance. In this book I discuss how those events are reflected in the habits and lifestyles of the current 12 to 25 year old demographic globally and how it has caused them to be the consummate consumer of digital goods based on events that have been created to develop them to be consumers and to be consumed. One of the first questions is whether this was the fault of parenting; in my opinion – no, it was more the position families were placed in and how they best could survive. When many events come into play and seemingly conspire to force families to re-invent themselves, it is not so much the fault of the “herd” but the result of the “rancher”.https://digitalcommons.unl.edu/zeabook/1047/thumbnail.jp

Veal: The Rise of Generation Interactive

The purpose of this book is to investigate and discuss the premise that the current generation was constructed to be consumers for a transitional marketplace. As the economy shifted from analog to digital, consumers had to be trained to accept, use and progress within a new economic model through changes in societal and economic patterns. During the course of this book those patterns will be discussed and displayed as a confluence of: Marketplace manipulation, Abusive use of technologies, and Lack of governance. In this book I discuss how those events are reflected in the habits and lifestyles of the current 12 to 25 year old demographic globally and how it has caused them to be the consummate consumer of digital goods based on events that have been created to develop them to be consumers and to be consumed. One of the first questions is whether this was the fault of parenting; in my opinion – no, it was more the position families were placed in and how they best could survive. When many events come into play and seemingly conspire to force families to re-invent themselves, it is not so much the fault of the “herd” but the result of the “rancher”.https://digitalcommons.unl.edu/zeabook/1047/thumbnail.jp

Automatic Machine Learning for Insurance: H2O Experiment

Treballs Finals del Màster de Ciències Actuarials i Financeres, Facultat d'Economia i Empresa, Universitat de Barcelona, Curs: 2020-2021, Tutor: Dr. Salvador Torra PorrasThis thesis provides an introduction of machine learning (ML), shows the implication that ML has on the insurance sector and takes a special consideration to the H2O ensemble modelling approach for the insurance claim fraud detection binary classification. The aim of this thesis is to study the H2O Automatic ML potential and compare the results generated with traditional algorithms such as lineal perceptron, Logistic Regression, multilayer perceptron, support vector machine and decision tree. Using H2O web interface or R programming, not only the most efficient ML algorithms are obtained with no effort but also provide better modelling metrics than traditional methods

Challenges and lessons from conducting audit research using social media

: Social media play an increasingly important role as both a means of communication and a source of information. Furthermore, social media provide a variety of time and cost-efficient, as well as participant-friendly, communication and networking channels, which expand the research repertoire in terms of recruitment and conducting interviews. The purpose of this paper is to broaden researchers’ understanding of the potential of using social media to facilitate qualitative research, and to guide them in the selection and use of social media channels considering the contextual differences. This paper adopts a qualitative methodology aimed at reflecting on the researcher’s experience of recruiting participants and conducting interviews using social media. The paper is the first of its kind to explore the potential of incorporating social media as a tool in qualitative research while considering contextual and cultural factors

Misleading Repurposing on Twitter

We present the first in-depth and large-scale study of misleading repurposing, in which a malicious user changes the identity of their social media account via, among other things, changes to the profile attributes in order to use the account for a new purpose while retaining their followers. We propose a definition for the behavior and a methodology that uses supervised learning on data mined from the Internet Archive's Twitter Stream Grab to flag repurposed accounts. We found over 100,000 accounts that may have been repurposed. We also characterize repurposed accounts and found that they are more likely to be repurposed after a period of inactivity and deleting old tweets. We also provide evidence that adversaries target accounts with high follower counts to repurpose, and some make them have high follower counts by participating in follow-back schemes. The results we present have implications for the security and integrity of social media platforms, for data science studies in how historical data is considered, and for society at large in how users can be deceived about the popularity of an opinion