The Distinctiveness of a Fashion Monopoly Haochen Sun* A pdf version of this article may be downloaded here. Introduction I. The Distinctiveness Doctrine and the Louboutin Litigation A. The Roadmap of the Distinctiveness Doctrine 1. Inherent Distinctiveness 2. Acquired Distinctiveness 3. The Significance of the Distinctiveness Doctrine B. The Distinctiveness of the Louboutin Red Sole Mark 1. Decision of the District Court 2. Decision of the Second Circuit II. Re-Examining the Distinctiveness of the Red Sole Mark A. The Tough Roadmap of the Secondary Meaning Doctrine 1. The Scope of the Consuming Public i. Who is “The Purchasing Public”? ii. A Substantial Number of the Relevant Purchasing Public 2. Evidentiary Requirements for Proving Secondary Meaning B. Questioning the Distinctiveness of the Red Sole 1. The Consuming Public 2. Fulfilling the Evidentiary Burden III. Toward a Social Justice Mandate for Trademark Law A. Social Justice as a Policy Concern 1. Economic Injustice 2. Status Injustice 3. The Application of the Social Justice Mandate B. The Legal Basis of the Social Justice Mandate 1. Taking Precedents Seriously 2. Taking the American Legal Tradition Seriously i. Social Justice as a Fundamental Value ii. Social Justice as a Constitutional Value C. Practical Concerns about the Mandate 1. The Demise of Single Color Marks? 2. The Demise of the Luxury Industry? 3. The Aesthetic Functionality Doctrine Conclusion Continue reading →
Signing in Glitter or Blood?: Unconscionability and Reality Television Contracts by Catherine Riley* A pdf version of this article may be downloaded here. Introduction I. Background in Reality Television A. Defining Reality Television as a Genre 1. The Scope of Reality Television in This Note B. Legal Activity in Reality Television II. What is the Unconscionability Doctrine? A. The Test for Unconscionability 1. Procedural Unconscionability 2. Substantive Unconscionability 3. Application of the Two-Part Test B. Unconscionability under California Law C. Unconscionability under New York Law III. The Contracts A. Measures for Protection of Production Companies and Networks B. Typical Contractual Language IV. Could Unconscionability be Used to Void the Contracts? A. Unconscionability in Reality Television Contracts According to the Los Angeles County Superior Court and the Second District of the Court of Appeal 1. The Higgins Cases 2. The Dr. Phil House Case B. Applying the Test and Concluding that the Contracts Are Not Unconscionable 1. Free Will and Informed Decisions in the Procedural Unconscionability Analysis 2. Commercial Setting and Industry Norms as Part of the Scrutiny for Substantive Unconscionability 3. Shocking the Conscience – The Crux of the Substantive Unconscionability Analysis 4. Available Opportunities to the Participants Weighing in on the Substantive Unconscionability Analysis 5. The Production Companies Bear the Financial Risk – Turning Away from Finding of Substantive Unconscionability Conclusion Continue reading →
The Merger and the Damage Done: How the DOJ Enabled an Empire in the Live Music Industry By Josh Baker* A pdf version of this article may be downloaded here. Introduction I. The Live Music Industry A. Yesterday: A Brief History of the Music Industry B. A Day In The Life: Staging a Concert C. Hello, Goodbye: Recent Industry Developments D. Come Together: Live Nation, Ticketmaster, and the Merger 1. Live Nation: History and Strategy 2. Ticketmaster: History and Strategy 3. The Merger Investigation and Consent Agreement II. The Department of Justice’s Antitrust Analysis A. Jigsaw Puzzle: Horizontal Components of the Merger 1. The Market for Primary Ticketing Services 2. The Market for Integrated Service Packages B. All Down The Line: Vertical Components of the Merger 1. Anticompetitive Concerns of Vertical Integration 2. The Firms’ Asserted Procompetitive Justifications C. Under My Thumb: The DOJ’s Final Judgment III. Remedies A. I Want To Break Free: Structural Remedies B. Don’t Stop Me Now: Behavioral Remedies Conclusion Continue reading →
Handle with Care: The Evolving Actual Malice Standard and Why Journalists Should Think Twice before Relying on Internet Sources By Kimberly Chow* A pdf version of this article may be downloaded here. Introduction I. The History of the Actual Malice Standard for Defamation II. Skepticism Toward Internet Sources Could Cause A Reevaluation of Defamation A. Internet Journalism Emphasizes Speed Over Accuracy B. Courts Have Encouraged Skepticism Toward Internet Sources C. Redmond v. Gawker Takes A Different Tack III. New Times May Mean A New Malice Standard A. News Organizations Are Not Being Careful Enough B. Courts May Impose Additional Duties on Journalist C. The Ingrained Legal Standards Will Be Resistant to Change IV. How Writers Can Adapt with the Times A. What Can Be Done to Encourage More Responsibility Among Writers? B. Practical Advice to Journalists and Other Writers Conclusion Continue reading →
On the Duality of Internet Domain Names: Propertization and Its Discontents By Frederick M. Abbott* A pdf version of this article may be downloaded here. I. Introduction I. The Legal Framework A. ICANN and the UDRP B. The ACPA C. ACPA as Recourse from the UDRP II. Domain Names as Intellectual Property A. The Technical Domain Name Function B. The Domain Name as Identifier C. Domain Names as Intellectual Property D. Trademarks as Property 1. Assignment and Transfer 2. Antidilution 3. Intangible Asset Value III. Domain Names in the Courts A. Domain Names as Contract Rights B. Domain Names as Intangible Property 1. Conceptually 2. Ninth Circuit Precedent C. Domain Names as Tangible Property IV. A Dual Nature V. Undervaluing the Dual Nature A. Propertization Standing Alone 1. GoPets v. Hise 2. AIRFX.com v. AirFX LLC B. WIPO Panelists React C. The ACPA and the UDRP 1. Bad Faith 2. A Class of Insulated Domain Names VI. Treating Unrelated Transfers as New Registrations A. Related Party Transfers B. New Registration and Contract 1. A New Assessment 2. Rights or Legitimate Interests C. The Sale and Purchase of a Business D. Other Rights or Legitimate Interests E. The ACPA Revisited VII. The Continuing Role of Trademark Law VIII. The Wider Picture Continue reading →
