Lost and Found: Intellectual Property of the Fragrance Industry; From Trade Secret to Trade Dress By Charles Cronin* Download a PDF version of this article here. Introduction I. The Fragrance Industry and the Challenge of Reverse Engineering A. Regulation of Reverse Engineering in the United States and the European Union B. Challenges to the Fragrance Industry’s Traditional Reliance on Trade Secrets C. The Impact of Gas Chromatography-Mass Spectrometry (GC-MS) Technologies on the Fragrance Industry II. Patent and Copyright Protection for Fragrances A. Patent B. Copyright C. France and the Netherlands: Odor in the Courts III. Fragrance and Trademark Protection A. The Expanding Scope of Trademark Protection B. Growing Significance of Multisensory Trade Dress C. U.S. Trademark Protection for Trade Dress D. Fragrance as Trade Dress Conclusion Continue reading →
Bridging the Gap: Improving Intellectual Property Protection for the Look and Feel of Websites By Liz Brown* A pdf version of this article may be downloaded here. Introduction I. Copying Websites’ Look and Feel: A Growing Threat to E-Commerce A. The Nature of Look and Feel Copying B. The Economic Impact of Look and Feel Infringement II. Using Copyright or Trade Dress to Protect Website Look and Feel A. The Ambiguous Nature of Look and Feel Protection B. The Limits of Copyright Law in Protection Look and Feel 1. The Copyright Office May Not Register “Look and Feel” Elements 2. Judicial Use of Copyright Claims in Look and Feel Cases C. The Limits of Trade Dress Law to Protect Website Look and Feel 1. Articulating the Elements of the Alleged Trade Dress 2. Proving Distinctive Trade Dress 3. Secondary Meaning in the Website Context 4. The Difficulty of Proving Non-Functionality 5. Likelihood of Confusion in Look and Feel Cases D. The Threat of Copyright Preemption in Look and Feel Cases E. New Technology Requires a New Framework III. Proposing a Trade Dress-Based Solution for Look and Feel Infringement A. A Multi-Factor Test for Website Look and Feel Infringement 1. Overall Similarity i. Fonts and Formatting ii. Color Scheme iii. Sound Effects and Animation iv. Symbols, Logos and Other Marks v. Layout and Arrangement vi. User Experience Designer Testimony 2. Proximity of Products or Services in the Relevant Market(s) 3. Intentional Copying and Other Fraudulent Measures 4. Likelihood of Confusion 5. Additional Considerations B. Designing an Effective Damages Scheme IV. Additional Issues Conclusion Continue reading →
