Andrew Gilden & Sarah R. Wasserman Rajec, Innovations in Pleasure
Conscious effort to tout devices/drugs as medical, downplaying
their recreational and pleasurable features. Patents for cannabis related
products, including lubricant, explained as medical and instrumental—to avoid
divorce, mix cannabis with Viagra. Consequences of excluding pleasure from patent
discourse: effects on what is considered patentable?
Queer theory: pleasure as a way of knowing things. Like debates
about traditional knowledge. Patents talk about boundary-lowering potentials of
MDMA (ecstasy), which has been known for decades among queer communities.
Abortion and contraception are also implicated by this.
Folkloric and medical treatments have existed at least from Hippocratic times.
Moving from the folk to the patent/regulated system also strips out the pleasure
and the purpose—to fix sick people instead of allowing women freedom to make
private choices; becomes public and subject to legislation.
Q: drugs v. devices used by a physician: does that form a
pattern or change over time and who is the user—the patient or the doctor?
Rosenblatt: is this good (sharing knowledge with wider
community), bad (commercializing and privatizing what had been used for human
flourishing), or a sociological account?
Jeremy Sheff, Distributive Norms around Knowledge as a
Resource
Should we focus on excludability or rivalrousness in
determining how to manage resources? We can make things excludable through tech
and law, making things that previously looked like public goods providable by
private markets. But should you do that? Depriving people of benefits
that don’t cost anything to provide. Jefferson’s maxim about lighting one’s
taper from another’s was cribbed from Cicero, who suggested that there was a
moral obligation to share nonrivalrous goods.
Book project: how do we reconcile that with our intuitions about markets
and distributive justice?
Norms of distributive justice: Political equality: all else
equal, all human beings have an equal claim/obligation to benefits and burdens
of social life. Responsibility: unequal
benefits/burdens shouldn’t be a function of brute luck, but b/c of their own
choices and actions.
Assumption: benefits for some correlate w/burdens for
others: my loaf of bread isn’t mine any more if I give it to you. When agents return
good for good and ill for ill—reciprocity—the baseline norm of political equality
is maintained. This assumption holds generally for scarce, tangible resources
(private goods).
But that doesn’t apply to knowledge. So we face reciprocity
norm conflict. Compensation intuition: obligation to reciprocate is function of
burden on giver, so we should measure it by cost borne. Gratitude: obligation to
reciprocate is function of benefit to recipient, so we should measure it by
value received. While they overlap for scarce tangible goods, they conflict for
knowledge. If we adhere to one, we violate the other. Confusing knowledge
creation with distribution obfuscates but doesn’t eliminate those paradoxes.
Jordi Goodman: Knowledge transfer is not costless—it takes
time. Also, gratitude is a norm that is payment, which is also why you ask if
someone is in a position to accept the transfer. Gender and race as well as culture
affect the costs of transmission.
A: agreed that transfer of knowledge and bundling of
knowledge with scarce resources like time and labor that might attend upon
transfer. If we think there’s a duty to compensate, it’s about those other
resources.
Courtney Cox: kinds of knowledge: if I know something that
has value b/c knowledge of it is limited, that may require different analysis.
A: basic observation of benefit matching loss works with
physical goods. (Though it also can be costly to hang on to goods.) Maintaining
an advantage in pursuing goals b/c of asymmetric information is a different
issue that isn’t about benefit, ties this to Qs like insider trading.
RT: I’m not sure you can say there’s no cost to the
knowledge transfer as such when it inherently entails my time and effort—it’s
just that the transfer might not work, and in that sense we can distinguish
between the time and effort and whether the knowledge transfer happens. Copying may be directly costless to the
knowledge creator, but knowledge transfer is not, and who is initiating may
affect what’s going on here: knowledge transfer encodes voluntariness which
fits with Cicero but not with a lot of the copying to which people object today.
Obligation not to stop copying, or a right to stop copying, is different.
Vishnubhakat: cost of transfer might be correlated with cost
of creation in ways that affect the analysis.
A: yes, but trying to clarify that we care about different
things for different reasons and may have to choose which.
TM
Justin Hughes on the disappearance of terroir—interesting argument
about reality (microclimates are real but GIs are much broader; climate change makes
past claims not credible) and politics (EU and China deals to recognize a
limited set of GIs; extension of GI claims to arts and crafts). Today, very few
claims are about the nature of the territory.
Bob Brauneis: Modern GIs seem so much like certification
marks that Jeanne Fromer’s criticisms of the latter seem to apply--used to
fight between producers to exclude some b/c there’s no effective concept of
terroir to discipline the concept.
A: that’s right; GI fans think that certification marks are
way too weak, and the gov’t should bring everyone in and regulate the certification,
supposedly forcing transparency.
Buccafusco: internal v. external producer interests.
Champagne shippers want the place champagne comes from to be as big as
possible; growers in the region want it as small as possible to increase the
price; but Moet wants the lowest possible cost of inputs while keeping the
price high externally, so its internal idea about what champagne is no longer
has much appeal to terroir.
A: the extremely successful GIs have this problem; contrast
to the less successful ones that really want an appeal to terroir to provide sales
appeal.
Sandra L. Rierson, Trademark Law and the Creep of Legal
Formalism
Various rules w/in TM law have been codified that we seem to
be treating more as formalistic labels or bright line rules when a more practical
approach is preferable in TM context instead of leaning on labels.
Legal formalism: this might not be the right label, it might
be more rules v. standards. Background: Erie marks transition from era
of legal formalism to realism; one of the reasons we have the Lanham Act, since
Erie invalidated the federal common law of trademarks. Results came not
from balancing competing principles and policies, but automatically applying
rules deduced logically from greater principles that supposedly dictated a single
result in every case. Example: allowing descriptive terms with acquired
distinctiveness to be “trademarks” is realist; common law/1905 Act required D
sell goods of “same descriptive properties” as P for infringement, but Lanham
Act eliminated that requirement, which is now just a LOC factor.
Formalism creeping back in: three examples. (1) Dilution—formalistic
principle: once we put the label famous on a mark, we don’t do much to restrict
the protection of that mark. Victoria’s Secret v. Moseley on remand: use on a
sex-related business is presumed to tarnish.
(2) Genericism/genericide—the generic label has become
overly formalistic in terms of if a mark is deemed generic, the courts put that
label on it and don’t look at the way it functions in the marketplace.
Booking.com was trend in the right direction looking at how the mark was
functioning in practice & competitive necessity [note that Booking.com gave
no weight to competitive necessity]. Too much emphasis on noncommercial uses of
terms in determining genericity—words can have multiple meanings in multiple
contexts. Courts no longer have sufficient flexibility to remedy unfair
competition when a word has been deemed generic. [I don’t think that’s true
either. They don’t use it often but they definitely have it, and more courts
are following the Belmora approach of saying 43(a) gives them that authority.]
(3) Functionality. Evolved to more bright line rule. Doesn’t
pay sufficient attention to competitiveness inquiry. If it has the label
functional that’s the end of the story. [But how is functionality assessed? A
formal label in the outcome doesn’t mean legal formalism was applied to generate
the label, any more than “affirmed” at the end of a court decision does.]
Bright line rules are attractive b/c predictable and easy to
apply [none of these doctrines are those] but turn out to be arbitrary and
generate unintended consequences. Taking an all or nothing approach w/o
considering consumers and competitors is bad.
Silbey: legal realism was a response to 19th
century formalism. Today we see formalism in other areas which can’t be
divorced from politics of judicial review and judicial power over other
branches of gov’t. Is that what’s going on here?
A: plays a role, not sure how it ties into TM specifically
where politics aren’t as obvious.
Rosenblatt: Who benefits from formalism? Is that any
different from what we see in other contexts? David Welkowitz has a piece on
benefits of uncertainty. Most obvious formalism to her is set of presumptions
and burden shifts that come w/registration.
RT: Situate your argument: (1) Carol Rose, Crystals &
Mud: cycles of law; (2) Glynn Lunney’s argument that the “everything in the
hopper” practice of modern TM harms small entities that can’t afford to
litigate in ways that expand the rights of big TM owners and contracts the
rights of small ones (note that the dilution definition is neither a rule nor a
standard! It’s not formalistic at all because it provides no rule of decision
for which of these factors is more important or how to weigh them—you can
find dilution but you don’t have to, as in the Gap case in NY). (3) Mark McKenna—not formalism but absence of
guardrails imposed on realism in classical unfair competition.
Alex Roberts, Multi-Level Lies
Marketing and advertising claims made by laypeople selling
through MLMs. MLMs are exploitative business model—95-99% make no money, and
the products are often junky. Web of federal and state regulation. Why do
sellers make deceptive or illegal claims? A lot are desperate to recoup costs,
unload products, meet goals they committed to; lack knowledge and training; rules
aren’t intuitive (structure/function claims for supplements); share personal experience;
true believers want to help friends.
Social media influencers seem reasonably held liable, but
what about when the seller is texting friends. Current regime renders
regulation uneven and inconsistent, incentivizing the use of MLM model. MLMs
vary on type of guidance they give sellers about legal restrictions on
marketing claims. A few say that you can’t use marketing messages other than
what they approve. Some give dos (only truth), don’ts (don’t spam people, don’t
mention disease).
Interested in sellers’ understanding of the contracts. Lay
sellers don’t have strong understanding of laws and/or don’t feel bound by them.
Interviews/surveys?
Rosenblatt: real incentive for companies to make rules that
downline members don’t follow or understand. How do they make that happen?
Gender and class?
Lemley: is/should there be contributory false advertising
liability? [Yes]
RT: The core problem is that the entity that benefits the
most isn’t held responsible for what sellers say to sell. We don’t need to
reform advertising law; we need to reform agency law. [Gena Feist: and get the
FTC rules actually enforced.] Solutions or analogies from gig economy?
Lemley: similarly it’s been proposed that liability should
follow the brand, e.g. for franchising.
Said: note that MLM companies may also have IP troubles [Lularoe
and leggings designs], which might also provide an interesting set of
comparisons.
Felix Wu: Vicarious liability too—but are you interested in
whether the individuals should be directly liable? To what end? Secondary liability
means there has to be primary liability.
A: They’re often victims too—they are being taken advantage of.
Rebecca Tushnet, Bad Spaniels, Counterfeit Methodists, and
Lying Birds: How Trademark Law Reinvented Strict Scrutiny
Roughly one third of the judges on the federal bench were
not there six years ago. Most of them were not even asked about their views
about intellectual property, but a substantial number of them were chosen in
order to reject major parts of the postwar legal order. It would be surprising
if that didn’t have effects on intellectual property law, for good and for ill.
Indeed, we are just starting to see those effects now, including among judges
who might not be recently appointed but feel recently let off the leash of
precedent
Where this project comes from: I wrote basically only amicus
briefs the past two years, and most of the TM ones were about Rogers v.
Grimaldi and its rule for so-called expressive speech, a phrase I hate because
it is such a category error—commercial speech is not nonexpressive; when
commercial speech causes trademark confusion it’s confusing because it’s
expressive! Nonetheless, courts often write as if “expressive speech” was some
kind of separate category from “source indication.”
I started thinking that I needed a better account of how the
law ended up with this obviously wrong characterization and how we could do
better.
In response to the massive expansion of trademark’s scope
over the last century, courts mostly implicitly devised a compromise by which
trademark is pulled back to a more traditional anti-fraud-like scope when it is
applied to noncommercial speech sold in the marketplace, such as movies,
newspapers, songs, and visual art, or used as the name of an organization with
dues-paying members, such as a political party or congregation. The key here is
that when I say fraud, I do not mean fraudulent intent, but materially
deceptive effect resulting in economic interactions with the wrong party. This
compromise explains an otherwise surprising feature of the cases: Political
speakers and religious speakers can often expect worse outcomes than
“commercial” publishers, given the kinds of cases brought against them.
I’m going to assume you know what Rogers is and focus on the
other classes of cases: cases against gripers, where courts increasingly say
that there’s no liability at all, often saying that the Lanham Act is constitutional
because it covers only commercial speech, and griping isn’t for-profit—ignoring
that plenty of noncommercial speech is for profit.
This line of cases does more than create a conflict with
Rogers and its progeny, which does apply the Lanham Act to noncommercial speech,
albeit with a modified test. It also creates a conflict with a third line of
cases: The Lanham Act is applied with no adjustment when political or religious
plaintiffs, as opposed to ordinary marketplace actors, bring suit against
competitors who claim to represent the true ideology behind the trademark. Breakaway
sects have often been enjoined from using the name they believe truly
represents their beliefs, which seems troubling from a free exercise perspective
and also conflicts with the Court’s emerging doctrine of giving religions most
favored nation treatment—since gripers and for-profit news and
entertainment speech get better treatment against infringement claims, these
churches probably should too.
What is to be done?
The rule that I think is what current First Amendment
doctrine requires: trademark law may be applied to noncommercial speech when it
satisfies strict scrutiny: the regulation has to be the least restrictive means
of satisfying a compelling government interest. This could in theory be done by
categorical balancing, so we could end up with three different rules for
gripers, for profit noncommercial speech, and religion v religion disputes, but
each one should focus on naming speakers, not just source identification,
and relatedly on a remedy that provides audiences who care the opportunity to
identify who’s speaking.
Of specific note, Rogers itself may not fully replicate
direct First Amendment analysis of a liability claim against noncommercial
speech. In general, the content of noncommercial speech may be regulated only
to further a compelling government interest, and the regulation must be
narrowly tailored and the least restrictive means of accomplishing that
compelling interest. At least in its
“explicit falsity” prong, though, Rogers tailors potential liability for
noncommercial speakers more closely to classic fraud, excluding most noncommercial
speech from trademark liability. But there are several remaining problems.
First, requiring artistic relevance wrongly puts the burden of justification on
the noncommercial speaker. Second,
Rogers does not impose a materiality requirement, and it is hard to see how the
government has a compelling interest in protecting consumers from confusion
they don’t care about. Finally, Rogers
does not require courts to consider a disclosure remedy instead of the full
range of Lanham Act remedies including injunctions and damages, suggesting a
failure of narrow tailoring.
Q: religious piece of it: how much is about religious speech
and protecting a particular ideological perspective—framed as neutral but
really protecting the dominant ideology that is more attuned w/decisionmaker
Rosenblatt: is there something regarding different kinds of
potential confusion: the kind of confusion in Rogers that isn’t important
enough to stop is sponsorship, not passing off. If that creates a principled
distinction that means we’re not violating the MFN idea.
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