Privatizing Human Rights? Creating Intellectual Property Rights From Human Rights Principles

This article focuses on one human rights treaty, the Convention, and the possible uses of its provisions to secure and expand intellectual property rights (“IP rights”). Although the Convention does not contain any provision specifically referencing IP rights, it does contain several provisions that could be used to expand IP rights. Furthermore, the existence of a substantial body of interpretive case law from the ECHR affords us a more detailed perspective on the manner in which the Convention could be used to further IP rights. Finally, the group of countries adhering to the Convention, though all part of Europe, represent a somewhat diverse collection of governments, from the U.K. to Germany, to the Czech Republic, to the former constituent states of the Soviet Union (including Russia), to Turkey. Although not completely representative of a range of possible human rights viewpoints, it is a sufficiently diverse group to provide a useful window into the problem. The article begins with a brief examination of the Convention, followed by a discussion of provisions relevant to IP rights and some recent cases in the ECHR that raised the issue of using human rights provisions in an intellectual property context. Building on these cases and provisions, the article raises the following issues: (1) In what ways could the Convention be interpreted to expand or even create particular IP rights?; (2) Will the use of the Convention in these situations have unforeseen effects on IP rights as they are now understood?; (3) Who are the likely beneficiaries of the use of the Convention in intellectual property cases?; (4) What effect could the use of the Convention have on attempts to create a more global intellectual property law?; and (5) Could such uses weaken human rights protections in more traditional situations

The Problem of Concurrent Use of Trademarks: An Old/New Proposal

It is an old problem in trademark law. Someone develops a trademark and starts using it on goods or services. Business improves and the company slowly expands into different areas of the country. Sooner or later this first user discovers that someone else in another part of the country is using the same mark on the same goods. Although the second user started using the mark after the first user, the second use was made without knowledge of the first user. The next thing you know, there is a lawsuit. In such a case, who should win

Going to the Limits of Due Process: Myth, Mystery and Meaning

All states have long-arm statutes permitting the exercise of jurisdiction over non-resident defendants. Although the statutes vary in their operative language, most have been interpreted by the courts to go to the limits of due process. However, examination of the decisions demonstrates that many such statutes actually do not permit jurisdiction in circumstances where due process would appear to allow it. This problem has important implications for federal courts using state long-arm statutes, as well as for the state courts

Trademarks in 2010 (and 2011): Dilution Takes Center Stage

From the hundreds of trademark cases decided in any year, it is often difficult to discern any particular theme. There are cases from many different areas raising very disparate issues. In 2010, however, trademark dilution stands out as the area with the most prominent doctrinal opinions. In addition to three court of appeals decisions, there were five significant Trademark Trial and Appeal Board (“TTAB”) decisions from an entity whose prior involvement in dilution had been very much the exception. These dilution opinions form the centerpiece of this discussion. There were, of course, other notable decisions involving contributory infringement and the continuing saga of Google AdWords. For good measure, there is a small detour into the related field of rights of publicity and the issue of what constitutes commercial speech. But, first things first, and dilution deserves to be front and center this year

Reexamining Trademark Dilution

It is unlikely that you ever will see a Kodak chair or a Rolls Royce candy bar. No doubt Eastman Kodak and Rolls Royce would have an army of lawyers in court to have the interlopers sentenced to ignominy (unless, of course, these companies suddenly went into the furniture or candy business). But suppose you did see these products. What would you think? Would you think that Kodak was diversifying? Would you believe that Rolls Royce had gone the way of Calvin Klein, apparently licensing its name for a fast profit? And if not, would these interlopers affect the way you react to a Rolls Royce or Kodak commercial? The psychology of such reactions is at the root of an important trend in modern trademark law-an issue known as trademark dilution. From their origins in the guilds, trademarks have become important features of contemporary mass marketing techniques. Originally indicia of the source of goods, trademarks are now often products in their own right. The protection granted the owner of a trademark has evolved over the years as well. Early cases protected against piracy by competitors seeking to compete dishonestly by passing off their goods as those of the trademark owner. Modern trademark law protects against this and much more. Common law provided the source of protection in the nineteenth and early twentieth centuries. After World War II, the passage of the Lanham Act, a comprehensive federal trademark statute, made federal law the primary source of protection and made its scope nationwide. Throughout the evolution of trademark law, the linchpin of protection analysis has remained essentially the same-possible confusion of consumers. Consumers see the goods of the person who does not own the mark but uses it in connection with goods and services sold to the public, and they assume that those goods come from or are authorized by the real owner of the mark

Trademarks and Related Rights: Highlights for 2009-10

However, the most important part of the [Rescuecom Corp. v. Google, Inc.] opinion was not the decision itself, or its reasoning. Rather, it was the Appendix that the court annexed to its opinion that made the decision extraordinary. As law students, we are all taught that federal courts will not issue advisory opinions. But it is difficult to view the Rescuecom Appendix as anything other than an advisory opinion. And its breadth is rather sweeping. The court embarked on a fairly lengthy discussion of the history and purpose of the “use in commerce” definition. It concluded that it probably was not intended to apply at all to infringement cases— only to registration. The court’s reasoning is not at all illogical. The concept of affixation (or simultaneous display) that underlies the definition has long been connected with the idea of “use” necessary to create trademark rights. And, once there is sufficient connection between interstate commerce and the trademark, the jurisdictional nexus for Congressional regulation seems satisfied. Indeed, there is a tension between the definition of “use in commerce” and the definition of “commerce.” The latter refers to all commerce that can be regulated by Congress, but the former limits the scope to something less than the outer boundaries of Congressional power. Nevertheless, as the court admits, the definition of use in commerce is not by its terms limited to registration. Thus, the court’s analytical approach (which included a discussion of the legislative history of the provision) differs from the literalist, text-only approach used recently by many courts, including the Supreme Court