The Road Not Taken: Initial Interest Confusion, Consumer Search Costs, and the Challenge of the Internet

This article critiques the development and application of initial interest confusion and argues for a doctrine based on consumer search costs rather than a trademark owner\u27s goodwill. Part I traces the origin of initial interest confusion and presents a theory, based on minimizing search costs, of when the concept should be applied. It then examines the application of initial interest confusion in light of the courts\u27 uncertainty as to the purpose of the doctrine. Part II describes the doctrinal difficulties caused by the uncritical adoption of initial interest confusion to cases involving the Internet. These problems can be resolved by focusing on search costs and the costs of correcting consumer confusion

The Judicial Role in Trademark Law

This article considers the judicial role in developing trademark law. The issue is important because proposals for trademark reform often rest on expansive, but unexamined, conceptions of judicial authority. In thinking about trademark reform, we should broaden our perspective to include considerations of what we want from the law in general. Our answer to the question of what judges applying the Lanham Act should do may vary depending on whether we respond as subjects of trademark law (i.e., as consumers or sellers); as litigants to a trademark action; or as third parties whose focus is not on trademark law, but the general operation of the legal system. Thinking about contested trademark policies in this manner provides an alternative basis for explaining, critiquing, and reforming modern doctrine

AI and the Death of Trademark

How might improvements in artificial intelligence (AI) technology affect trademark doctrine? This Article approaches the question by imagining trademark law in a world in which we can fully outsource our purchasing decisions to AIs that satisfy our preferences better than we can. Leaving aside whether the technology is possible, this thought experiment tells us something about today’s trademark doctrine and how it is responding to changing online technology and culture.A sufficiently sophisticated AI would render trademarks superfluous in many situations. Trademarks function by simplifying information. We use them to stand in for a broad range of (sometimes contradictory) data assembled from a variety of sources. Because human cognition is limited, the ability of trademarks to serve as a shortcut is valuable, but it is a second-best solution. With unlimited time or enhanced capacities, we would be better able to find optimal products without relying on the simple information signals offered by trademarks. As it is, sifting through all the available data is not a wise use of our limited attention. But the hypothetical AI is not similarly limited, and a sufficiently advanced AI “shopper” would exist to analyze the context that trademarks allow us to ignore. The role of trademarks in such a world is more limited—and consequently requires less protection—than what we see today.Though the hypothetical AI does not, and may never, exist, we can see its forerunners in web platforms like Amazon and Facebook. They are already changing trademark doctrine, and they illustrate why trademarks may be less important in the future. Though these technologies raise any number of troubling questions, they are not the sort that trademark law is well-equipped to address

Understanding Follicular Output Rate (FORT) and its Implications for POSEIDON Criteria

The management of low prognosis patients in ART represents a challenge for reproductive specialists. Different profiles and biologic characteristics have been identified among these patients. Indeed, while poor ovarian response can be seen in patients with impaired ovarian reserve, others, identified as hypo-responders, show unexpected poor or suboptimal response to controlled ovarian stimulation despite satisfying ovarian parameters. These hypo-responders are associated during FSH stimulation to slow initial responses in terms of estradiol levels and follicle growth, longer stimulations, and/or greater cumulative FSH doses. Hence, it appears that ovarian sensitivity to gonadotropins differs from a patient to another, and plays a determinant role on ovarian response to stimulation. Although precise mechanisms remain to be elucidated, increasing evidence suggests that ovarian sensitivity to FSH could be influenced by the presence of genetic mutations or single nucleotide polymorphisms of gonadotropins and their receptors. Evaluating ovarian sensitivity to FSH therefore appears as a key element to improve IVF success rates in these low prognosis patients and open new treatment perspectives. Since the traditional ovarian markers currently used are not sufficient to accurately reflect ovarian response to FSH, a tool to assess ovarian sensitivity to gonadotropin stimulation was required. The present review aims to present Follicular Output Rate (FORT) as an efficient quantitative and qualitative marker of ovarian responsiveness to gonadotropins, discuss the underlying mechanisms of impaired sensitivity to FSH and the possible FORT implications for Poseidon criteria

Thick Marks, Thin Marks

This conception of thick or thin protection is part of routine trademark disputes, but it has more interesting implications for trademark law. Trademarks do more than identify a product’s source. They embody connotative and abstract meanings over which trademark owners seek control. Traditional trademark doctrine is often ill-suited to resolve the resulting litigation. One way courts respond is by calibrating thickness of protection. Judges receptive to the expansion of trademark rights may grant thick protection; skeptical judges, thin. This shortcut frustrates the development of precedent. Treating a mark as thin, for example, enables courts to resist broad trademark claims without disturbing their doctrinal underpinnings. This softens the impact of trademark’s growing scope in individual cases, but without providing comfort to future defendants. Unfortunately, judicial fluctuation between thick and thin protection is inevitable and intertwined with the long, unresolved debate about the extent to which trademarks should be treated as a form of property. Drawing on the literature describing modularity and property rights, this Article argues that thick trademark protection is simultaneously appealing to judges yet impossible over the long run. Thick protection offers the ability to hide complex interactions between trademark meanings behind a simpler property signal, leaving it to the trademark owner to manage them. This approach may be understood as an information-economizing tool that frees a judge from the task of determining whether an unauthorized use of a mark’s extended meaning adversely affects its core, source-identifying function. But many such uses implicate the interests of third parties who cannot rely on the economic decisions of the mark owner for vindication. Because trademark doctrine also recognizes the importance of these concerns, consistent treatment of trademarks as thick is impossible notwithstanding the lure of the property shortcut. Judicial uncertainty and unclear doctrine is the result. Courts should think more clearly and explicitly about when thick protection is appropriate. Many extended trademark meanings are built out of a mark’s source-identification function. This suggests that the case for thick protection is strongest when a mark’s source identification capability is threatened, but weaker with respect to other meanings. Some doctrinal developments in trademark law reflect this view; others do not. But regardless of whether one agrees with this approach to trademark thickness, judicial choices on the subject should be acknowledged and made transparent

The Jack Daniel’s Dialogues

Jack Daniel’s Properties, Inc. v. VIP Products LLC threatened to upend the balance between trademark rights and expressive freedom. While not going as far as it might have, the opinion limits the ability of defendants to resist trademark claims that target artistic or noncommercial speech. As important as this result is, we should not overlook a fundamental preliminary question. How could a dog chew toy that mocks Jack Daniel’s whiskey be the basis of a viable trademark infringement claim? Answering that question requires discussing deep issues within modern trademark law. These antecedent questions were not directly before the Court, but they nonetheless bubbled up during the Jack Daniel’s oral argument, giving the Justices the opportunity to think out loud about them. Their questions thus provide a window not only on their views about this case but about trademark law in general. Read in conjunction with the final opinion, however, the argument highlights the challenges generalist judges face in ensuring that trademark law serves the interests of consumers and citizens rather than brands and corporations. The oral argument thus tells us a lot about problems in trademark doctrine and foreshadows why the ultimate Jack Daniel’s opinion was unable to resolve them

In-situ synchrotron microtomography reveals multiple reaction pathways during soda-lime glass synthesis

Ultrafast synchrotron microtomography has been used to study in-situ and in real time the initial stages of silicate glass melt formation from crystalline granular raw materials. Significant and unexpected rearrangements of grains occur below the nominal eutectic temperature, and several drastically different solid-state reactions are observed to take place at different types of intergranular contacts. These reactions have a profound influence on the formation and the composition of the liquids produced, and control the formation of defects.Comment: 4 pages, 4 figure

Metabolic imprinting, programming and epigenetics - a review of present priorities and future opportunities

Metabolic programming and metabolic imprinting describe early life events, which impact upon on later physiological outcomes. Despite the increasing numbers of papers and studies, the distinction between metabolic programming and metabolic imprinting remains confusing. The former can be defined as a dynamic process whose effects are dependent upon a critical window(s) while the latter can be more strictly associated with imprinting at the genomic level. The clinical end points associated with these phenomena can sometimes be mechanistically explicable in terms of gene expression mediated by epigenetics. The predictivity of outcomes depends on determining if there is causality or association in the context of both early dietary exposure and future health parameters. The use of biomarkers is a key aspect of determining the predictability of later outcome, and the strengths of particular types of biomarkers need to be determined. It has become clear that several important health endpoints are impacted upon by metabolic programming/imprinting. These include the link between perinatal nutrition, nutritional epigenetics and programming at an early developmental stage and its link to a range of future health risks such as CVD and diabetes. In some cases, the evidence base remains patchy and associative, while in others, a more direct causality between early nutrition and later health is clear. In addition, it is also essential to acknowledge the communication to consumers, industry, health care providers, policy-making bodies as well as to the scientific community. In this way, both programming and, eventually, reprogramming can become effective tools to improve health through dietary intervention at specific developmental point

Metabolic imprinting, programming and epigenetics - a review of present priorities and future opportunities

Metabolic programming and metabolic imprinting describe early life events, which impact upon on later physiological outcomes. Despite the increasing numbers of papers and studies, the distinction between metabolic programming and metabolic imprinting remains confusing. The former can be defined as a dynamic process whose effects are dependent upon a critical window(s) while the latter can be more strictly associated with imprinting at the genomic level. The clinical end points associated with these phenomena can sometimes be mechanistically explicable in terms of gene expression mediated by epigenetics. The predictivity of outcomes depends on determining if there is causality or association in the context of both early dietary exposure and future health parameters. The use of biomarkers is a key aspect of determining the predictability of later outcome, and the strengths of particular types of biomarkers need to be determined. It has become clear that several important health endpoints are impacted upon by metabolic programming/imprinting. These include the link between perinatal nutrition, nutritional epigenetics and programming at an early developmental stage and its link to a range of future health risks such as CVD and diabetes. In some cases, the evidence base remains patchy and associative, while in others, a more direct causality between early nutrition and later health is clear. In addition, it is also essential to acknowledge the communication to consumers, industry, health care providers, policy-making bodies as well as to the scientific community. In this way, both programming and, eventually, reprogramming can become effective tools to improve health through dietary intervention at specific developmental points