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

Adherence to best practice consensus guidelines for implant-based breast reconstruction: Results from the iBRA national practice questionnaire survey

Introduction: The 2008 National Mastectomy and Breast Reconstruction Audit demonstrated marked variation in the practice and outcomes of breast reconstruction in the UK. To standardise practice and improve outcomes for patients, the British professional associations developed best-practice guidelines with specific guidance for newer mesh-assisted implant-based techniques. We explored the degree of uptake of best-practice guidelines within units performing implant-based reconstruction (IBBR) as the first phase of the implant Breast Reconstruction Evaluation (iBRA) study. Methods: A questionnaire developed by the iBRA Steering Group was completed by trainee and consultant leads at breast and plastic surgical units across the UK. Simple summary statistics were calculated for each survey item to assess compliance with current best-practice guidelines. Results: 81 units from 79 NHS Trusts completed the questionnaire. Marked variation was observed in adherence to guidelines, especially those relating to clinical governance and infection prevention strategies. Less than half (n = 28, 47%) of units obtained local clinical governance board approval prior to offering new mesh-based techniques and prospective audit of the clinical, cosmetic and patient-reported outcomes of surgery was infrequent. Most units screened for methicillin-resistant staphylococcus aureus prior to surgery but fewer than 1 in 3 screened for methicillin-sensitive strains. Laminar-flow theatres (recommended for IBBR) were not widely-available with less than 1 in 5 units having regular access. Peri-operative antibiotics were widely-used, but the type and duration were highly-variable. Conclusions: The iBRA national practice questionnaire has demonstrated variation in reported practice and adherence to IBBR guidelines. High-quality evidence is urgently required to inform best practice

Economic evaluation of complete revascularization for patients with multivessel disease undergoing primary percutaneous coronary intervention

Objective: To determine the cost-effectiveness of complete revascularisation at index admission compared to infarct-related artery (IRA) treatment only, in patients with multi-vessel disease undergoing Primary percutaneous coronary intervention (P-PCI) for ST-segment elevation Myocardial Infarction (STEMI). Methods: Economic evaluation of a multi-centre randomised trial comparing complete revascularisation at index admission to IRA-only P-PCI in patients with multi-vessel disease (12 month follow-up). Overall hospital costs (costs for P-PCI procedure(s), hospital stay and any subsequent readmissions) were estimated. Outcomes were major adverse cardiac events (MACE, a composite of all-cause death, recurrent myocardial infarction, heart failure, and ischemia-driven revascularisation) and quality-adjusted life years (QALYs) derived from the EQ-5D-3L. Multiple imputation was undertaken. The mean incremental cost and effects, with associated 95% confidence intervals (95%CI), the incremental cost-effectiveness ratio (ICER) and the cost-effectiveness acceptability curve (CEAC) were estimated. Results: Based on 296 patients, the mean incremental overall hospital cost for complete revascularisation was estimated to be –£215.96 (–£1,390.20 to £958.29), compared to IRA-only, with a per-patient mean reduction in MACE events of 0.170 (0.044 to 0.296) and a QALY gain of 0.011 (-0.019 to 0.041). According to the CEAC, the probability of complete revascularisation being cost-effective was estimated to be 72.0% at willingness to pay of £20,000 per QALY. Conclusions: Complete revascularisation at index admission was estimated to be more effective (in terms of MACE and QALYs) and cost-effective (overall costs were estimated to be lower and complete revascularisation thereby dominated IRA-only). There was, however, some uncertainty associated with this decision

Optimum Tariffs and Exhaustible Resources: Theory and Evidence for Gasoline

Domestic consumption taxes on oil products largely differ across countries, ranging from very high subsidies to very high taxes. The empirical literature on the issue has highlighted the role of revenue-raising (Ramsey commodity taxation) and externalitycorrection (Pigovian taxation) motives for national taxation. Isolatedly, the theoretical literature on non-renewable-resource taxation has emphasized the role of the optimumtariff dimension of excise taxes which reflects countries’ non-cooperative exercise of their market power. This paper reconciles these two strands by comprehensively addressing the issue. First, we propose a multi-country model of national taxation with oil – modeled as a polluting exhaustible resource – and some regular commodities. Domestic welfare is maximized with respect to domestic taxes under a revenue-collection constraint. The optimal domestic tax on oil consumption not only consists of a Ramsey inverse-elasticity term and of a Pigovian term, but also of an optimum-tariff component. In fact, resource exhaustibility implies a form of supply inelasticity that magnifies optimum-tariff arguments. Second, based on a multiple regression using a data set with a large number of countries, we test the power of the optimum-tariff tax component in explaining national gasoline taxes. We find strong evidence that this component plays a crucial role in countries’ taxation of gasoline

The Long-Baseline Neutrino Experiment: Exploring Fundamental Symmetries of the Universe

The preponderance of matter over antimatter in the early Universe, the dynamics of the supernova bursts that produced the heavy elements necessary for life and whether protons eventually decay --- these mysteries at the forefront of particle physics and astrophysics are key to understanding the early evolution of our Universe, its current state and its eventual fate. The Long-Baseline Neutrino Experiment (LBNE) represents an extensively developed plan for a world-class experiment dedicated to addressing these questions. LBNE is conceived around three central components: (1) a new, high-intensity neutrino source generated from a megawatt-class proton accelerator at Fermi National Accelerator Laboratory, (2) a near neutrino detector just downstream of the source, and (3) a massive liquid argon time-projection chamber deployed as a far detector deep underground at the Sanford Underground Research Facility. This facility, located at the site of the former Homestake Mine in Lead, South Dakota, is approximately 1,300 km from the neutrino source at Fermilab -- a distance (baseline) that delivers optimal sensitivity to neutrino charge-parity symmetry violation and mass ordering effects. This ambitious yet cost-effective design incorporates scalability and flexibility and can accommodate a variety of upgrades and contributions. With its exceptional combination of experimental configuration, technical capabilities, and potential for transformative discoveries, LBNE promises to be a vital facility for the field of particle physics worldwide, providing physicists from around the globe with opportunities to collaborate in a twenty to thirty year program of exciting science. In this document we provide a comprehensive overview of LBNE's scientific objectives, its place in the landscape of neutrino physics worldwide, the technologies it will incorporate and the capabilities it will possess.Comment: Major update of previous version. This is the reference document for LBNE science program and current status. Chapters 1, 3, and 9 provide a comprehensive overview of LBNE's scientific objectives, its place in the landscape of neutrino physics worldwide, the technologies it will incorporate and the capabilities it will possess. 288 pages, 116 figure

Extent of non-publication in cohorts of studies approved by research ethics committees or included in trial registries

BACKGROUND: The synthesis of published research in systematic reviews is essential when providing evidence to inform clinical and health policy decision-making. However, the validity of systematic reviews is threatened if journal publications represent a biased selection of all studies that have been conducted (dissemination bias). To investigate the extent of dissemination bias we conducted a systematic review that determined the proportion of studies published as peer-reviewed journal articles and investigated factors associated with full publication in cohorts of studies (i) approved by research ethics committees (RECs) or (ii) included in trial registries. METHODS AND FINDINGS: Four bibliographic databases were searched for methodological research projects (MRPs) without limitations for publication year, language or study location. The searches were supplemented by handsearching the references of included MRPs. We estimated the proportion of studies published using prediction intervals (PI) and a random effects meta-analysis. Pooled odds ratios (OR) were used to express associations between study characteristics and journal publication. Seventeen MRPs (23 publications) evaluated cohorts of studies approved by RECs; the proportion of published studies had a PI between 22% and 72% and the weighted pooled proportion when combining estimates would be 46.2% (95% CI 40.2%-52.4%, I2 = 94.4%). Twenty-two MRPs (22 publications) evaluated cohorts of studies included in trial registries; the PI of the proportion published ranged from 13% to 90% and the weighted pooled proportion would be 54.2% (95% CI 42.0%-65.9%, I2 = 98.9%). REC-approved studies with statistically significant results (compared with those without statistically significant results) were more likely to be published (pooled OR 2.8; 95% CI 2.2-3.5). Phase-III trials were also more likely to be published than phase II trials (pooled OR 2.0; 95% CI 1.6-2.5). The probability of publication within two years after study completion ranged from 7% to 30%. CONCLUSIONS: A substantial part of the studies approved by RECs or included in trial registries remains unpublished. Due to the large heterogeneity a prediction of the publication probability for a future study is very uncertain. Non-publication of research is not a random process, e.g., it is associated with the direction of study findings. Our findings suggest that the dissemination of research findings is biased