Descriptive Trademarks and the First Amendment

The protection of exclusive rights in descriptive trademarks is an unconstitutional restriction of speech under the First Amendment. Trademark laws that prohibit a competitor from using trademarked descriptive words to sell a product fail to satisfy the Central Hudson test for evaluating the constitutionality of commercial speech regulations. The use of a descriptive term to accurately describe a product is not misleading expression regardless of whether another business claims trademark rights in that term. Although the government has a substantial interest in protecting the ability of consumers to identify and distinguish among the products of a business and its competitors, descriptive trademark laws do not directly advance this interest and are more extensive than necessary. Descriptive marks do not identify the source of a product as well as a mark that is fanciful, arbitrary, or suggestive because descriptive marks retain their original descriptive meaning. As descriptive marks quickly and cheaply provide consumers with information regarding the attributes of a product, protecting exclusive rights in such marks does not directly and materially further trademark law’s goal of helping consumers identify and distinguish among the products of competing manufacturers. Current trademark law also stifles the free flow of commercial information more than necessary when it protects exclusive rights both in inherently distinctive marks and descriptive marks. The consumer-oriented goals of trademark law are satisfied if the government grants and enforces trademark rights only in inherently distinctive marks

Intellectual Property Rights in Advertising

Before the twentieth century, U.S. courts refused to protect copyright in advertisements. Until the middle of the twentieth century, advertising slogans generally were not registered or protected under U.S. trademark law. Today, firms can acquire copyright protection in advertising and there is no categorical rule against trademark registration or protection of slogans. This Article questions whether this extension of copyright protection to advertising and trademark protection to slogans has a satisfactory utilitarian justification[...] If it is too difficult to completely eliminate copyright protection of advertising, Congress should at least consider reducing such protection to increase the free flow of advertising expression. This Article proposes two revisions to the U.S. Copyright Act to accomplish this goal. First, Congress could amend Section 102(b) to state that advertising is only entitled to thin copyright protection against virtually identical copying of the work. Although the doctrine of thin copyright is used for factual compilations and other works for reasons that do not apply to original and creative advertising works, this framework, which requires virtual identity between the original and accused works, should more effectively balance the interests of copyright holders and later advertisers and commentators. Second, Congress could clarify in Section 107 that the first factor of the statutory fair use defense weighs in favor of a finding of fair use if the defendant used the plaintiff\u27s copyrighted advertising expression in comparative advertising. If Congress revises Section 102 and 107 of the U.S. Copyright Act to enable more unauthorized uses of copyrighted advertising expression during the copyright term, this may reduce the harm to free expression caused by copyright protection of advertising and increase net social welfare[...] This Article attempts to provide a full evaluation of the utilitarian justification for copyright in advertising and trademark rights in slogans. Part II explains how the United States uses copyright and trademark law to protect exclusive rights in advertising and slogans. In Part III and IV, this Article explores whether copyright in advertising and trademark rights in slogans can be justified under traditional utilitarian theory. The answer is probably not, with the caveat that it may be too difficult and costly to distinguish between advertising and other copyrighted works in light of recent changes in the advertising industry. Since U.S. intellectual property laws are primarily based on utilitarian theory, legislators should consider reducing copyright protection of advertising and eliminating trademark protection of slogans

Raising the Threshold for Trademark Infringement Protect Free Expression

The First Amendment right to free speech limits the scope of rights in trademark law. Congress and the courts have devised various defenses and common law doctrines to ensure that protected speech is exempted from trademark infringement liability. These defensive trademark doctrines, however, are narrow and often vary by jurisdiction. One current example is the speech-protective test first articulated by the Second Circuit in Rogers v. Grimaldi, expanded by the Ninth Circuit, and recently restricted by the Supreme Court in Jack Daniel’s Properties v. VIP Products to uses of another’s mark within an expressive work that do not designate the source of the accused infringer’s products. The Rogers test prevents a finding of infringement if this use is artistically relevant to the underlying work and does not explicitly mislead consumers as to the source or content of the work. This categorical rule has definite advantages over the multi-factor likelihood of confusion test in trademark disputes involving expressive works, but—like other speech-protective doctrines—this test has limitations and shortcomings. This Article therefore proposes an alternative test for protecting First Amendment interests in trademark law that better balances the public interest in avoiding consumer confusion against the public interest in free expression. This proposed broad trademark fair use test would apply to any informational or expressive use of words, names, or symbols claimed by another as a mark in connection with any goods or services. If this threshold requirement is satisfied, this use is not infringing unless the accused infringer’s expression is (1) a false statement about its products (including false claims of sponsorship, endorsement, or approval) or (2) is likely to mislead a reasonable person about the source of the goods, services, or message. This more holistic approach to protecting speech interests in the trademark enforcement context should increase clarity and predictability in trademark law, and will enable courts to dispose of speech-harmful claims as a matter of law early in a lawsuit

Autism Spectrum Disorder Prevalence Rates in the United States: Methodologies, Challenges, and Implications for Individual States

Many different studies have been conducted to determine the prevalence rates of Autism Spectrum Disorder (ASD) in the United States. The methodologies of these studies have varied, resulting in a multitude of publications with differing prevalence rates. Because there is such a wide range in the results of prevalence studies, it may be difficult for individual states to determine their rates. Accurate prevalence rates are important to obtain for many different reasons including increasing advocacy and awareness, increasing funding, and proper allocation of services for individuals with ASD and their families. Additionally, prevalence studies can be used to assess which groups are more at risk for ASD based off location and environmental factors. This paper describes different methodologies that can be utilized to determine ASD prevalence rates, the strengths and weaknesses of each method, and the challenges to determining accurate rates. This paper also includes the results from a study conducted in Nebraska to determine prevalence rates of ASD in the state. Implications for future prevalence studies are addressed and recommendations are provided

Equine Multiple Congenital Ocular Anomalies maps to a 4.9 megabase interval on horse chromosome 6

<p>Abstract</p> <p>Background</p> <p>Equine Multiple Congenital Ocular Anomalies (MCOA) syndrome consists of a diverse set of abnormalities predominantly localized to the frontal part of the eye. The disease is in agreement with a codominant mode of inheritance in our horse material. Animals presumed to be heterozygous for the mutant allele have cysts originating from the temporal ciliary body, peripheral retina and/or iris. In contrast, animals predicted to be homozygous for the disease-causing allele possess a wide range of multiple abnormalities, including iridociliary and/or peripheral retinal cysts, iridocorneal angle abnormalities, cornea globosa, iris hypoplasia and congenital cataracts. MCOA is most common in the Rocky Mountain horse breed where it occurs at a high frequency among Silver colored horses. The Silver coat color is associated with mutations in <it>PMEL17 </it>that resides on ECA6q23. To map the <it>MCOA </it>locus we analyzed 11 genetic markers on ECA6q and herein describe a chromosome interval for the <it>MCOA </it>locus.</p> <p>Results</p> <p>We performed linkage analysis within 17 paternal half-sib families of the Rocky Mountain horse breed. More than half of the 131 offspring had the Cyst phenotype and about one third had MCOA. Segregation data were obtained by genotyping 10 microsatellite markers most of which are positioned on ECA6q22-23, as well as the missense mutation for the Silver phenotype in <it>PMEL17</it>. Significant linkage was found between the <it>MCOA </it>locus and eight of the genetic markers, where marker <it>UPP5 </it>(Theta = 0, z = 12.3), <it>PMEL17ex11 </it>(Theta = 0, z = 19.0) and <it>UPP6 </it>(Theta = 0, z = 17.5) showed complete linkage with the <it>MCOA </it>locus. DNA sequencing of <it>PMEL17 </it>in affected and healthy control individuals did not reveal any additional mutations than the two mutations associated with the Silver coat color.</p> <p>Conclusion</p> <p>The <it>MCOA </it>locus can with high confidence be positioned within a 4.9 megabase (Mb) interval on ECA6q. The genotype data on <it>UPP5</it>, <it>PMEL17ex11 </it>and <it>UPP6 </it>strongly support the hypothesis that horses with the Cyst phenotype are heterozygous for the mutant allele and that horses with the MCOA phenotype are homozygous for the mutant allele.</p