Our Spring 2025 Issue—Volume 14, Number 2—examines issues newly arising out of innovations in technology and the marketplace and the ways that intellectual property law can respond to these new demands.
First, Professors Nguyen and Porter analyze AI “input” claims—
i.e., copyright class action claims against AI companies for using creative works as inputs to train their models. They argue that courts should support such claims both substantively and procedurally. Substantively, the copying of creative works constitutes direct copyright infringement and is not fair use. Procedurally, AI input classes satisfy Rule 23 of the Federal Rules of Civil Procedure. The article further argues that AI class action settlements can help create what the authors call “fair licensing” regimes.
Second, Professor Alexandra J. Roberts explores the rise of so-called “dupes.” From social media influencers to major brands’ own marketing, the term is used to describe and promote more affordable alternatives to more expensive products. Unlike counterfeits, dupes often copy, say, a perfume’s scent or the overall look of an expensive handbag, without copying their insignias and logos. The article asks whether the simple fact that something is marketed as a “dupe” ever is itself enough to constitute false or deceptive advertising. Or, whether it actually promotes a social good by allowing consumers to easily find products they are interested in that fit their budget. Roberts argues given the desirability and utility of characterizing products as dupes, it would go too far to consider explicitly advertising something as an imitation as inherently unfair. Instead, as litigation over this practice rises, courts should seek to understand what consumers perceive the term “dupe” to mean in the specific context.
Third, Professor Thomas Y. Lu analyzes how federal judges assess word-mark distinctiveness in trademark litigation. Lu finds that federal judges routinely fail to rigorously and uniformly examine and categorize a word mark’s distinctiveness, despite it being long recognized as an important factor in resolving disputes over a trademark’s validity. Lu argues that the United States Patent and Trademark Office should establish practical, clearly defined rules and guidelines with which federal judges can more rigorously assess all categories of distinctiveness.
Fourth, Professor M P Ram Mohan, Aditya Gupta, and Vijay V. Venkitesh evaluate morality-based proscriptions—that is, explicit legislative carve outs rejecting scandalous or obscene trademarks—in Indian trademark law. The authors create a novel dataset of Indian trademark applications in order to examine the administration of the morality-based provision, Section 9(2)(c) of the Indian Trade Marks Act 1999. The research provides empirical evidence underscoring a lack of clear standards governing administration of the provision. Ultimately, the authors argue that the examination of morality-based prescriptions in trademark law, both internationally and in the Indian context, highlights the complexities and inconsistencies inherent in such regulations.
Fifth, Yeseul Do offers a note advocating for and outlining a new approach to artificial intelligence regulation in educational settings which more comprehensively accounts for the unique needs of young adults aged 13-17. The note provides an overview of current regulatory measures and guidance which apply in this area and argues that they fail to equip students with a standard level of AI literacy as they prepare to enter a higher education and professional landscape in which AI use is increasingly common.
Finally, Sarah Rosenberg offers a note exploring the market success of beauty dupes, demonstrating why IP law is largely ineffective in excluding them from the market, and challenging the idea that they should be excludable by traditional cosmetic brands. The note argues that beauty dupes generate social value for consumers which justifes their existence, and that they contribute to the financial health of the cosmetics industry as a whole.
You may view and download a PDF of the complete issue here.
Sincerely,
S. Alex Lee
Editor-in-Chief
NYU Journal of Intellectual Property & Entertainment Law
.