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Trademark Confusion Revealed: An Empirical Analysis
No full textThe likelihood of confusion standard defines the scope of trademark infringement. Likelihood of confusion examines whether there is a substantial risk that consumers will be confused as to the source, identity, sponsorship, or origin of the defendants’ goods or services. This Article presents a contemporary empirical analysis of the various factors and how they interact. Conventional wisdom teaches us that courts should comprehensively traverse each factor and that likelihood of confusion cases generally require jury determination. However, the data reveals that neither is true. Instead, courts provide early off-ramps to litigants by “economizing,” and analyzing only a handful of factors or by “folding” factors within each other. The findings also reveal (1) which forums are pro-defendant and which are pro-plaintiff; (2) the impact of rivalry and fair use on outcomes; and (3) an apparent Ninth Circuit dominance.
What constitutes “confusion” remains highly subjective and difficult to evaluate. Proxies like intent, survey evidence, mark strength, and consumer sophistication fail to incorporate real-world purchasing conditions or are better considered within omnibus factors. In contrast, actual confusion, mark similarity, and competitive proximity provide judges with a potent trio of factors to guide the infringement inquiry. Together with safe harbors for descriptive and expressive uses, these rules of thumb enable courts to resolve trademark disputes more coherently, consistently, and expeditiously. This Article concludes with a blueprint of how these rules of thumb complement artificial intelligence systems and how those systems can use empirical studies as training data to inform future likelihood of confusion analyses
Cause the Samplers Gonna Sample: Should Courts Allow De Minimis Copying of Sound Recordings or Should They Shake It off?
No full textI Have No Mouth, and I Must Scream: Interventions byInvitation in the Aftermath of Coup D\u27etats
No full textInsurer LMI\u27s Omnibus Reply in Support of Claim Objections
No full textInsurer LMI\u27s Omnibus Reply in Support of Claim Objections, filed January 18, 2022
Restricting Funeral Expense Deductions
No full textDuring the Middle Ages, the wealthy often requested burial in mass graves with their fellow mortals, as a sign of humility. But since the rise of the cult of the individual during the Renaissance, individual burial plots have been an expression of prestige, wealth, and social status for some. For example, Leona Helmsley, real estate baroness and “Queen of Mean,” dedicated 1.4 million mausoleum. Respectful disposition of the body is a hallmark of civilization and a common law requirement of estate administration, but an extravagant burial is a personal choice which can impose significant costs on future generations.
A tax deduction for discretionary spending is a government subsidy which shifts part of that cost to other taxpayers. The current federal estate tax deduction for funeral expenses, combined with accommodating laws for administering decedents’ estates, allow the rich to shift 40 percent of the entire cost of big-money burials to other taxpayers. These deductible big-money burials can monopolize substantial, valuable real estate and significantly contribute to environmental pollution. An analysis of current case law reveals that estate and trust law doctrines generally fail to recognize the potential dual character of burial expenses and fail to curb excesses.
This Article asserts that funeral expenses, including burial and related costs, can have a dual character. On the one hand, to the extent of the reasonable cost of a respectful burial, a federal estate tax deduction is appropriate because a decent disposition is mandated by law and social norms—those expenses are not voluntary. In contrast, this Article asserts that excessive funeral and burial expenses are a voluntary transfer of personal wealth at death, and those expenses should not be deductible. Other taxpayers should not have to subsidize land-hoarding, environmentally-damaging burials of the wealthy
Freeze-Frames and Blanket Bans: The Unconstitutionality of Prisons’ Denial of Gender Confirmation Surgery to Transgender Inmates
No full textIt is long established that the Eighth Amendment’s prohibition against imposing cruel and unusual punishments requires prisons to adequately address their inmates’ medical needs. Inmates identifying with the LGBTQ+ community are not exempt from this constitutional mandate. Trans inmates with gender dysphoria require specific treatment, including, but not limited to, gender confirmation surgery. While courts acknowledge that prisons owe a duty to provide some transition-related care, the extent of that duty remains contested. With no guidance from Congress or the Supreme Court, the constitutionality of prisons’ denial of gender confirmation surgery is in the hands of the circuit courts, which have come to differing conclusions. This Comment examines the current legal landscape for inmates seeking to obtain gender confirming surgery under the Eighth Amendment. This Comment addresses not only the medical necessity of gender confirmation surgery but also whether the current guidelines outlining transition-related care are actually helping trans inmates obtain medically necessary gender confirmation surgery. Lastly, this Comment discusses the progress and trajectory of LGBTQ+ rights and the implications that it may have on trans inmates’ ability to obtain access to gender confirmation surgery through the Eighth Amendment in the future
The Assault on Critical Race Theory as Pretext for Populist Backlash on Higher Education
No full textThe rightwing is carrying out its most recent effort to install an authoritarian regime in America, which has been boosted by Donald Trump’s white supremacist rhetoric and actions before, during, and after his four years holding the Office of the President of the United States. Resolute in the effort to destabilize American Democracy by forcing on to the populist, among other messages, “The Big Lie,” the rightwing is committed to a coordinated strategy of attacking and delegitimizing democratic institutions for the purpose of retaining economic and political power.
The attack on Critical Race Theory (“CRT”) is one element of the strategy to assault liberal democracy that has caught fire. Though CRT is in the crosshairs, higher education institutions represent the larger target, because they are the places and spaces where critical thinking, public discourse, and reasoned debate are practiced in furtherance of liberal, democratic ideals. Thus, the targeting of CRT is intended to chill specific speech representing various perspectives and viewpoints that critique the dominant white hierarchy. The objective of the rightwing assault is to propagate unreality, division, and fear to thwart the outcomes of a liberal democracy—equality, multiculturalism, and intellectualism.
The attacks on CRT are only one in a salvo of new and growing incursions on conveying truth in educational spaces. The intention is to whitewash America’s history of racism and racial oppression, while at the same time eliminating the critical roles that dissent and contestation play in strengthening the “democratic health of [American] society.” The unjustified barrage on CRT is a pretext for the erosion of freedom of thought and inquiry in our higher education institutions. Higher education institutions have the resources to archive truth, intellectual inquiry, dissent, and contestation and, therefore, must be out front in the battle for the hearts and minds of the next generation of critical thinkers.
This Essay discusses one approach for understanding the scope of CRT, explains why attacks on CRT are undemocratic, and concludes by suggesting how higher education institutions should respond to the attacks on CRT