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Our Fall 2021 Issue—Volume 11, Issue 2—contains three articles that challenge current perceptions and practices in our intellectual […]
Some perceive trademark protection as a reward for a mark owner’s labor in cultivating his business goodwill. However, among legal scholars and academics, the prevailing theoretical explanation for trademark protection is utilitarian, focusing on increasing consumer welfare.
Mickey Mouse, the iconic mascot of the Walt Disney Company, is one of the most recognizable and beloved characters in the world.
Immediate recognition is the epitome of success for musical artists. Few artists attain the level of success at which fans easily identify
their sound from a mere snippet of a track, joining the ranks of artists like Frank Sinatra, Dolly Parton, The Grateful Dead, Bob Dylan, and Ella Fitzgerald. Their unique sounds are almost immediately recognizable and easily distinguished from other artists in their genres. In the modern rap and pop world, Pitbull has attained this level of notoriety.
The Lanham Act sets forth which trademarks may be registered at the Patent and Trademark Office. It contains a number of limitations on registrability. Section 2(a) prohibits among other things the registration of a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” This provision originally came into force in 1946 with the enactment of the Lanham Act, but the prohibitions it sets forth have been in effect since the late nineteenth century, when the federal government first began to register trademarks.
The recent rise of virtual reality, augmented reality, and other related technologies has created vast amounts of virtual space. Within this space, novel forms of trademark infringement and expressive use may arise. This note categorizes the above-mentioned technologies under the umbrella term of “ virtual realism” and examines trademark infringement in relation to such virtual realism technologies.
By Timothy T. Hsieh*
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The growing specter of globalization impacts industries from communication to transportation, resulting in an unparalleled proliferation of cultural diffusion unmatched throughout history. Naturally, this cultural diffusion has familiarized American consumers with foreign brands and foreign languages despite the obvious English dominance domestically, resulting in a trademark quagmire. Under the current American doctrine of foreign equivalents, trademark examiners and courts translate non-English words into English to determine whether they meet the general United States Patent & Trademark Office (USPTO) registration requirements. However, by treating English and non-English words alike, the pool of source-identifying marks is unnecessarily restricted. This note argues that a clear rule-like form that relaxes restrictions of registering descriptive foreign language marks through offering ‘descriptive’ foreign-language a presumption of eligibility for protection would mitigate inconsistent application of the doctrine. Such a rule would also limit costs on consumers and producers that are caused by restricting the range of available marks and inhibiting creative and communicative branding.