The Lanham Act's Wonderful Complement To The Fdca: Pom Wonderful V.Coca-Cola Enhances Protection Against Misleading Labeling Through Integrated Regulation, 2015 Loyola University Chicago, School of Law
The Lanham Act's Wonderful Complement To The Fdca: Pom Wonderful V.Coca-Cola Enhances Protection Against Misleading Labeling Through Integrated Regulation, Jennifer Thurswell Radis
Loyola University Chicago Law Journal
POM Wonderful sued Coca-Cola under the Lanham Act claiming that it suffered losses due to the misleading label on Coca-Cola’s Minute Maid brand’s Pomegranate Blueberry juice blend. Reversing the Ninth Circuit’s decision in June 2014, the Supreme Court found that POM’s claim was not precluded even though the label was regulated by the FDCA. In fact, the Court acknowledged the complementary nature of private enforcement with FDA regulation, as it did in Wyeth v. Levine in 2009. This Article submits that POM exemplifies the Court’s willingness to strengthen the Lanham Act’s protections against misleading ...
The Conflict Between An Athlete’S Right Of Publicity And The First Amendment, 15 J. Marshall Rev. Intell. Prop. L. 117 (2015), Edward Kuester
The John Marshall Review of Intellectual Property Law
The recent rise of fantasy sports has created a conflict between an athlete’s right of publicity and the First Amendment of the Constitution. The legal question being discussed is whether athletes have a right of publicity in their identity, specifically their performance statistics and biographical information. If a right of publicity violation does exist, courts will have to determine whether a fantasy provider’s First Amendment privilege can prevail against an athlete’s publicity rights. This comment examines recent litigation surrounding athletes’ identities and the problems courts have in balancing the conflict between an athlete’s right of publicity ...
Troubleshooting Legal Malfunction: Lexmark And Consumer Standing Under The Lanham Act, 48 J. Marshall L. Rev. 453 (2015), 2015 John Marshall Law School
Troubleshooting Legal Malfunction: Lexmark And Consumer Standing Under The Lanham Act, 48 J. Marshall L. Rev. 453 (2015), Jeremy Rovinsky
The John Marshall Law Review
This article suggests that the recent Lexmark decision, while resolving the confusion relating to Lanham Act standing requirements, does nothing to protect those most vulnerable—the consumers. Congress must explicitly declare that consumers have standing under the Lanham Act when they have been damaged by purchasing falsely represented goods or services. Section I provides a history of the Lanham Act and illustrates how different courts initially allowed and then precluded consumers from bringing claims under Section 43(a)’s “any person” language. Section II critiques the opinions that have found no consumer standing, including the Supreme Court’s recent Lexmark ...
Fixing Failure To Warn, 2015 Brooklyn Law School
Fixing Failure To Warn, Aaron D. Twerski, James A. Henderson Jr.
Cornell Law Faculty Publications
Design-defect and failure-to-warn cases share the same structural elements. Just as the defendant cannot defend a case premised on defective design without knowing the specifics of how the plaintiff would redesign the product to make it safer, so with regard to defective warnings the plaintiff cannot challenge the reasonableness of the defendant's marketing or whether better warnings would have saved the plaintiff from injury without knowing the specifics of the proposed warnings. No court would accept as adequate a statement by the plaintiff that she has a general idea for a reasonable alternative design (RAD), and no court should ...
A "Faustian Pact"? Native Advertising And The Future Of The Press, 2015 University of Miami School of Law
A "Faustian Pact"? Native Advertising And The Future Of The Press, Lili Levi
As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of "native advertising" – a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers' well-documented ad avoidance. Although the native advertising model debuted on digital-native news sites, it is now ubiquitous in elite legacy media as well. Everyone knew "native" had arrived for good when the venerable New York Times not only introduced its online "Paid Post," but incorporated sponsored content in its print editions, and even hired an in-house branded ...
Product-Related Risk And Cognitive Biases: The Shortcomings Of Enterprise Liability, 2014 Cornell Law School
Product-Related Risk And Cognitive Biases: The Shortcomings Of Enterprise Liability, James A. Henderson Jr., Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Products liability law has witnessed a long debate over whether manufacturers should be held strictly liable for the injuries that products cause. Recently, some have argued that psychological research on human judgment supports adopting a regime of strict enterprise liability for injuries caused by product design. These new proponents of enterprise liability argue that the current system, in which manufacturer liability for product design turns on the manufacturer's negligence, allows manufacturers to induce consumers into undertaking inefficiently dangerous levels or types of consumption. In this paper we argue that the new proponents of enterprise liability have: (1) not provided ...
Shared Branding: Associated Use Of Trademarks And Trade Dress Through Shared Retail Space, 2014 Pepperdine University
Shared Branding: Associated Use Of Trademarks And Trade Dress Through Shared Retail Space, Lanning Bryer, Scott Lebson, Francesca Montalvo
The Journal of Business, Entrepreneurship & the Law
This Article explores the increasingly popular marketing strategy of two or more unrelated companies offering their separate and distinct mono-branded goods and services in a shared commercial space--herein referred to as “shared branding.”
The Plight Of Modern Markets: How Universal Banking Undermines Capital Markets, 2014 University of Southern California
The Plight Of Modern Markets: How Universal Banking Undermines Capital Markets, Carolyn Sissoko
University of Southern California Legal Studies Working Paper Series
This paper explains the process of competitive deregulation that led both the U.S. and the U.K. to embrace universal banking and to abandon the functional separation of financial activities that had long characterized their financial systems. The paper argues that only a few rare voices in the debate over universal banking that started in the late-1970s and continued for over a decade understood what was truly at stake. The principal argument in favor of separation, then as now, was that the commercial banking system, which is supported by a government “safety net,” needs to be protected from the ...
A Comprehensive Economic And Legal Analysis Of Tying Arrangements, 2014 Seattle University School of Law
A Comprehensive Economic And Legal Analysis Of Tying Arrangements, Guy Sagi
Seattle University Law Review
The law of tying arrangements as it stands does not correspond with modern economic analysis. Therefore, and because tying arrangements are so widely common, the law is expected to change and extensive academic writing is currently attempting to guide its way. In tying arrangements, monopolistic firms coerce consumers to buy additional products or services beyond what they intended to purchase. This pressure can be applied because a consumer in a monopolistic market does not have the alternative to buy the product or service from a competing firm. In the absence of such choice, the monopolistic firm can allegedly force the ...
Here We Are Now, Entertain Us: Defining The Line Between Personal And Professional Context On Social Media, 35 Pace L. Rev. 398 (2014), Raizel Liebler, Keidra Chaney
Social media platforms such as Facebook, Twitter, and Instagram allow individuals and companies to connect directly and regularly with an audience of peers or with the public at large. These websites combine the audience-building platforms of mass media with the personal data and relationships of in-person social networks. Due to a combination of evolving user activity and frequent updates to functionality and user features, social media tools blur the line of whether a speaker is perceived as speaking to a specific and presumed private audience, a public expression of one’s own personal views, or a representative viewpoint of an ...
Greasing The Wheels: British Deficiencies In Relation To American Clarity In International Anti-Corruption Law, 2014 University of Georgia School of Law
Greasing The Wheels: British Deficiencies In Relation To American Clarity In International Anti-Corruption Law, Todd Swanson
Georgia Journal of International & Comparative Law
No abstract provided.
A Call For Truth In The Fashion Pages: What Global Trend In Advertising Regulation Means For U.S. Beauty And Fashion Advertisers, 2014 Indiana University Maurer School of Law
A Call For Truth In The Fashion Pages: What Global Trend In Advertising Regulation Means For U.S. Beauty And Fashion Advertisers, Ashley O'Neil
Indiana Journal of Global Legal Studies
The advertising industry serves an important purpose in our society by acting as the main source of information for consumers about products. Global advertisement spending reaches into the hundreds of billions of dollars annually. Because advertising plays such a large role in the economy, regulators across the globe have increasingly sought to promote truth in advertising. As a result, advertising regulation has exploded in the recent decades. Recently, the beauty and fashion industries have come under fire from advertising regulatory bodies, most notably in Europe, for misleading and offensive advertising practices. Regulators and interest groups are concerned by the unrealistic ...
The Olympics, Ambush Marketing And Sochi Media, 2014 Central Michigan University
The Olympics, Ambush Marketing And Sochi Media, Adam Epstein
The purpose of this article is to explore the concept of ambush marketing and the legal environment surrounding it. With the advent of the Sochi Olympic Games held in February, 2014, ambush marketing again makes its way to the forefront of national and international attention. Certainly, the discussion of ambush marketing in advertising strategies would be a useful tool at any point in a law course that addresses intellectual property such as trademarks and domain names, and consumer protection issues in general. For decades, non-official sponsors of the Olympic Games have found ways to use the Olympic event platform to ...
The Registrability Of Primarily Geographically Deceptively Misdescriptive Marks: The Development Of § 1052(E)(3), 2014 Touro College Jacob D. Fuchsberg Law Center
The Registrability Of Primarily Geographically Deceptively Misdescriptive Marks: The Development Of § 1052(E)(3), Courtney Liotti
Touro Law Review
No abstract provided.
A Disclosure-Focused Approach To Compelled Commercial Speech, 2014 University of Michigan Law School
A Disclosure-Focused Approach To Compelled Commercial Speech, Andrew C. Budzinski
Michigan Law Review
In 2010, the Food and Drug Administration passed a rule revising compelled disclaimers on tobacco products pursuant to the Family Smoking Prevention and Tobacco Control Act. The rule required that tobacco warnings include something new: all tobacco products now had to bear one of nine graphic images to accompany the text. Tobacco companies filed suit contesting the constitutionality of the rule, arguing that the government violated their right to free commercial speech by compelling disclosure of the graphic content. Yet First Amendment jurisprudence lacks a doctrinally consistent standard for reviewing such compelled disclosures. Courts’ analyses typically depend on whether the ...
The Effect Of Forced Refocusing On The Value Of Diversified Firms, 2014 USC Marshall School of Business
The Effect Of Forced Refocusing On The Value Of Diversified Firms, John G. Matsusaka, Yongxiang Wong
University of Southern California Legal Studies Working Paper Series
This paper studies how investors responded when Chinese regulators required a group of large, publicly traded companies to divest their non-core hotel and real estate assets in 2010. The quasi-experiment allows direct estimates of the effect of diversification on value that are free from common selection problems in the literature. On average, stock prices rose 1 to 2 percent in response to forced refocusing, suggesting that corporate diversification was a value-destroying strategy for those firms. The implied “excess value/diversification discount” has at best a weak connection to the announcement return. The abnormal return was most positive for companies in ...
The Chapter 11 Efficiency Fallacy, 2014 Brigham Young University Law School
The Chapter 11 Efficiency Fallacy, Diane Lourdes Dick
BYU Law Review
This Article challenges the persistent claim that Chapter 11’s increasing utilization of market mechanisms will help facilitate economically efficient resolutions of corporate financial distress. Using two recent case studies, I show that, in fact, these mechanisms are used by stakeholders with existing market power to take control of the restructuring process and extract rents at the expense of other constituents: creditors, equity holders, and—in the case of companies that receive governmental bailouts—taxpayers. These distortionary effects are obscured by a dominant, neoclassical legal paradigm that ignores institutional and political dynamics. I advance a new explanatory model that draws ...
Pride And Profit: Geographical Indications As Regional Development Tools In Australia, 2014 Bond University
Pride And Profit: Geographical Indications As Regional Development Tools In Australia, William Van Caenegem, Jen A. Cleary, Peter Drahos
Journal of Economic and Social Policy
Geographical Indications (GIs) are intellectual property rights in placenames that evoke the typical qualities of agricultural products and foodstuffs that originate in particular districts. Presently, the EU is the dominant holder of protected GIs and the EU asserts that they are used extensively and effectively in EU countries as a rural and regional development tool. To date, Australia's response to GIs has largely been driven by perceptions of their impact upon trade gains and losses. Currently, Australia only has legal protection for wine-related GI's because of an agreement with the EU.
Given an increased focus on GIs internationally ...
Navigating Cybersquatting Enforcement In The Expanding Internet, 13 J. Marshall Rev. Intell. Prop. L. 321 (2014), 2014 John Marshall Law School
Navigating Cybersquatting Enforcement In The Expanding Internet, 13 J. Marshall Rev. Intell. Prop. L. 321 (2014), Jordan A. Arnot
The John Marshall Review of Intellectual Property Law
It has always been a considerable task to police something as vast at the Internet for trademark violations and abuse. As the Internet develops with the ongoing launch of hundreds of new generic Top-Level Domains, so does the host of enforcement options available to those seeking to protect the value of trademarks and other intellectual property. This article outlines seven criteria to consider when selecting a remedy, or combination of remedies. The traditional cease and desist letter is still a viable and effective option, and so, of course, is litigation. These tools were greatly enhanced in 1999 when the Internet ...
Now You See It, Now You Don’T . . . Or Do You?: Snapchat’S Deceptive Promotion Of Vanishing Messages Violates Federal Trade Commission Regulations, 30 J. Marshall J. Info. Tech. & Privacy L. 827 (2014), 2014 John Marshall Law School
Now You See It, Now You Don’T . . . Or Do You?: Snapchat’S Deceptive Promotion Of Vanishing Messages Violates Federal Trade Commission Regulations, 30 J. Marshall J. Info. Tech. & Privacy L. 827 (2014), Danielle Young
The John Marshall Journal of Information Technology & Privacy Law