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