IPSC: Other IP

Other IP  [Insert wry commentary about “fringe” fields like advertising law]
Sarah Burstein, The University of Oklahoma College of Law
Reviving Ornamentality 
Fed. Cir. killed the doctrine.  Statute says new, original, and ornamental
designs can get a design patent—word has been in the statute from the
start.  What now gets a design patent
does not necessarily fit with assumptions: design patent for a “cage spinal
implant.”  Or a “connector,” where the
only claim is the interface with other parts of the connector to a
computer.  Fuzzy slipper (no infringement
but valid). 
Is the PTO asleep at the wheel? No, the problem is the Fed.
Cir.  Regional circuits tended to have “dictated
by function” as floor + something more—beauty, visual appeal.  Fed. Cir. has destroyed that.  (1) Ornamental is the opposite of
functional.  (2) Thus ask whether design
is primarily ornamental or primarily functional.  (3) Won’t choose the latter unless there are
no (good) alternatives.  Clearly wrong:
ornamental is not the opposite of functional. 
A cup handle in the shape of a dragon can be both functional and ornamental.  They’re just different aspects.
And it’s not just about channeling.  Should the trade dress functionality
requirement be the same as for design patent? 
Apple v. Samsung: we use the same word for very different concepts, and
should differentiate them further. In trade dress we want to protect real
utility patents; don’t want useful design locked up. That’s part of
ornamentality, but not all.  Some say the
only good reason not to grant a design patent is to protect the utility patent
system.  Rethink ornamentality.
The whole concept: make this the visual part, the
unique/signature requirement of design patent; doesn’t appear in any other
regime of law.  Material visual
contribution to the art, using whatever aesthetic you want—has to be plausible
that consumers would care. Traditional decorative arts = presumptively
material.  Fed. Cir. allowed the spinal
implant to be patented b/c the doctor would see it.  But the doctor has no reason to care.
RT: Really like the project. (1) If ornamental isn’t the
opposite of functional, then where is the statutory basis for excluding functional
designs from design patent?  (2) Why
shouldn’t the utilitarian functionality standard be at least as broad in design
patent as in TM?  Is your standard for
patentability a requirement of
aesthetic functionality? (Which might itself help serve a channeling function
away from TM.)
A: (2) It sort of is. 
That is what design patents are for. 
(1) Ornamentality takes care of that. You have to care about it because
of how it looks, not because of how it works.
Q: is it necessary to jettison the utilitarian component as
much?  While the connector if functional,
it also looks sleek and cool.  You buy
the system because it all looks cool.
A: but it doesn’t have to be.  Apple wants it that way, but that’s a key
issue with spare parts.
Q: Two formulations: one where the consumer is motivated to
purchase, v. one where “do consumers care?” 
The former wipes out a lot of elements that might be important—a Mercedes
key looks really cool, as part of the whole design of the car.
Lisa Ramsey: Line drawing: who do we ask?  Industrial designers?  End consumers? 
Betsy Rosenblatt: Entire market value rule in patent asks a
similar Q, why do people buy.  Ends up
being very difficult to draw these lines—probably equally difficult in yours.
Q: wouldn’t this be redundant w/©, given the history of the
relationship between the two? One of the reasons for design patent’s desuetude
might be the expansion of ©.  Doesn’t
seem like they became popular again until Fed. Cir. enabled them to do
something with them that they couldn’t do with ©.
A: it’s not good that you can go under ©’s low bar.
Q: British case, Henshire v. ?, 10-12 judges talked about
what they saw as artistic craftsmanship. 
That was something that developed as a © category, in the background of
Ruskin’s philosophy of art. Unworkable, but you still have design protection,
to fill the gray area of functionality and aesthetics.
RT: Materiality jurisprudence can fix your problem of
linedrawing!  Materiality is willing to
judge based on wholesale ideas—this is the kind
of thing that sells products of this type—rather than difficult individualized
Q: is there a difference between lock-in—things you have to
buy—and not.  Also difficulty of
competing without copying—costs of designing around.  “Material” in patent context immediately
brings to mind inequitable conduct, and that’s a sticky idea for patent
Q: Bleistein says
you don’t have to make aesthetic judgments when looking at things that are
inherently aesthetic, and you seem to agree, but I think that’s
difficult/impossible. An aesthetic failure is an aesthetic move.
Yolanda King, Northern Illinois University College of Law
The Inadvisability of Nonuniformity in the Licensing of
Cover Songs 
Copyright Office recommends change in 115(a)(2): compulsory
license includes ability to make arrangement to conform it to style of
performer but can’t change fundamental nature or melody and isn’t copyrightable
as a derivative work w/o consent of copyright owner.  Much criticism of this, but CO recommends
that licensing of cover songs in various formats be changed.  Physical format = subject to §115.  But if you’re going to create a cover and
disseminate it in digital format—download, streaming—then it shouldn’t be
subject to §115. 
Her piece analyzes the recommendations.  Most of the report is about harmonization,
including in the music licensing marketplace, e.g., general public performance
right for sound recordings. Here, they’re treating uses differently—disharmonization.  Change in music consumption: physical formats
are predicted to disappear.  Which means
digital uses will take over, not subject to compulsory licensing. Very strange
recommendation; why not just do away with compulsory licensing if compulsory licensing
is so bad?  Burden on creators: most
creators of cover songs will be distributed digitally. 
Why would the CO do this?
Q: this sounds like politics, not logic. Want to know who
was doing the lobbying.  May be available
information.  (FOIA?) [But this doesn’t
make as much sense as dividing terrestrial from digital radio, because almost
everybody who makes physical records also sells them digitally.]
Q: sounds like a foot in the door—first you get digital,
then you argue that digital only is unfair.
Q: huge potential deadweight losses in speech, b/c musical ©
owners want to extract rent; opportunity to get rents out of people who currently
aren’t paying—people have been relying on that right for 100 years. 
A: Prince is an example: Prince would never license covers.  Unlike the rest of the report, which includes
support and discussion, this change is proposed without much
Rosenblatt: Some artists are deeply offended by the cover
right.  That lobby is very loud in the
conversation.  Look not just at
ASCAP/Harry Fox but Tresonas of the world: seeks out high school show choirs
& tells them to pay for custom arrangements.
Mira Sundara Rajan University of Glasgow – CREATe
Of Murals and Morals: Recent Art Controversies and What They
Signify for the Visual Artists Rights Act (VARA) of 1990 
Nearing maturity—what’s happened?  Works themselves: artworks/cultural property
represent a key interest. 
Artists/creators have separate interests.  Owners of artworks; property owners—owners of
buildings where artworks are situated. 
The public as a separate interest holding group.
Required to implement Berne Convention.  Protection of artists is weak compared to
other countries.  But also strong in some
respects.  Strong preservation of
What’s special about VARA? Destruction is generally
prohibited, which is actually controversial in moral rights generally. Money
damages play an important role and can be large: compensate the artists;
compensate the public/cultural heritage loss. 
Confusion about how to balance artistic interests with private property
ownership.  Potential for radical action
in the public interest, drawing on the ancestral power of VARA.
Kent Twitchell, $1.1 million for painting over his Ed Ruscha
mural. Compare France, where in the Hugo case 1 Euro was awarded, as
symbol.  But can money damages adequately
compensate for the destruction of the work? 
5Pointz controversy: court clearly says that they can—a case involving
the “UN of Graffiti,” NY’s “Graffiti Mecca.” 
Painted over by many artists over time.
US law is almost unique in destruction prevention (India also
prohibits that) but requires works to be of recognized stature.  Amar Nath Sehgal v. Union of India (Delhi
H.C. 2005)—mural damaged when being taken down for move to another site.  Damage to work occurred in 1978—wheels of
justice grind slowly in India. Court: Moral rights exist in works of art if
they acquire the status of cultural heritage of a nation, given the various int’l
cultural property conventions India signed. 
5pointz: site as a whole is not an artwork; ephemeral nature
may be important.  “Recognized stature”:
under Carter v. Helmsley-Spear, must have (1) stature, (2) that is recognized
by experts, public, segment of society. Experts disagreed on requirements for
stature—public exposure; artist stature à work stature;
consensus.  Bottom line: not a “work” and
therefore stature didn’t matter; ephemeral nature of works argued against there
being recognition.  Artists have now sued
for destruction of their works—what a difference a day makes.  Ruling came out one day after the works had
been whitewashed.
Picasso work: case won in the court of public opinion; outside
VARA because of timeframe.  California
Art Preservation Act allows public intervention to protect art—allows action to
preserve cultural heritage.  Art
preservation rather than artist rights’ statute?
Mary LaFrance University of Nevada, Las Vegas, William S. Boyd
School of Law
False Advertising Claims Against Product Names and Labels 
Pom Wonderful: sued for having only a tiny bit of
pomegranate and blueberry juice in its 99.4% apple and grape juice “Pomegranate
Blueberry Juice” product.  SCt found no
FDA safe harbor.  (DCt found same for
USDA in 2008.)  So what makes a label
false or misleading for state law and for the Lanham Act?  Potential for a flood of litigation.
Competitors risk the glass houses problem: their own label
is vulnerable to challenge if they sue. 
Pom’s Pomegranate Blueberry—what does that imply about the
contents?  If they called it Blueberry
Pomegranate would they be at risk? 
Claims under state false advertising or deceptive trade practices
acts?  Consumers do have
standing/preemption question is unsettled. 
Consumers don’t worry about the glass houses problem.  Class action issues.
Deceptively misdescriptive marks can be registered—PTO may
have different perception of what is deceptive for registration versus false
advertising purposes.  Non-deceptive in
the abstract might be deceptive in context of label/ads. E.g., BREATHASURE.  Registered, but cancelled except for chewing
gum.  Also registered HEALTHASURE for
dietary supplements, which is still on the register.  Harder: health is so broad that perhaps this
is puffery.  Mylanta NIGHT TIME STRENGTH—unregistered;
found to be literally false. 
Gerber “Fruit Juice Snacks”—never even tried to register;
false advertising claim allowed by 9th Cir. Label said “nutritious,”
“made w/real fruit juice and other all natural ingredients,” which were corn
syrup and water. Package showed a variety of fruits, but only fruit juice was
white grape juice from conentrate. Consumers might have different meanings.
FROOT LOOPS held not to be deceptive—nobody seeing the
packaging would believe there was actual fruit.
Terms may have defined meanings under regs, but consumers
probably don’t know those meanings.  What
would consumers expect about Pomegranate Blueberry juice: 50/50? 85/15
(actual)?  15/85?  10% corn syrup?  What do consumers think? Expects a lot of
variation in reactions.  How would Juicy
Fruit fare if seeking registration today?

We don’t know what consumers think of the words: organic, natural, free range,
low fat/fat free/low carb, light/lite, zero trans fat (up to .5 mg/serving by
regs), cholesterol free (up to 2 mg/serving), low cholesterol (up to 20
mg/serving) , zero calories (up to 5 cal/serving), sugar free (up to .5
g/serving), healthy, nutritious, juice v. juice drink v. juice beverage; cane
Courts don’t always require survey evidence and sometimes
ignore survey evidence that was offered. When they believe they know what a
reasonable consumer would infer from a name/label/context.  Courts have not articulated factors or guidelines
for determining what a reasonable consumer infers, unlike the multifactor
likely confusion analysis. [I think that’s a good thing.]  Consumers may see different things.  [What is wrong with probabalistic
analysis?]  Courts do more gut-level analysis
in many situations. [Not clear that differs from TM; see Barton Beebe’s study.]
Legislation/stricture FDA/USDA regulations. Court-developed standards
similar to likelihood of confusion factors? 
Will legal uncertainties be good for consumers by encouraging fuller
disclosures on labels?
RT: Flood of litigation: there was a flood pre-Pom because
of California’s law adopting FDA requirements as its own. Not clear how Pom
increases the flood because the preemption and preclusion inquiries are
[more motivation for the cases you choose to describe: why
ask about these particular terms]

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