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The Slants Decision Understates the Value of Trademark Registration in Promoting Speech - Correctly Decided With a Conclusory Analysis, 17 J. Marshall Rev. Intell. Prop. L. 380 (2018)
Get PDFThe highly anticipated case of Matal v. Tam resulted in the band, The Slants, eventually being able to register their band name as a trademark, with a goal in mind to reclaim Asian stereotypes. Despite this decision, it is not immediately clear how having a registration enhances the registrant’s right to use the mark as a part of free speech, when the Court observes that Tam could call his band The Slants even without registration. This article touches on the Tam case, by analyzing both the positive and negative rights that federal trademark registration yields. By expanding on a variety of examples, this article will explore the focus for a First Amendment evaluation on rights of speech, rather than focus primarily on the prima facie case that comes with having a trademark registration, concluding that the advantages to free speech resulting from registration are substantial
The New Digital Wild West: Regulating the Explosion of Initial Coin Offerings, 85 Tenn. L. Rev. 897 (2018)
No full textIn less than a calendar year, initial coin offerings or “ICOs” have become the fastest growing capital market in the world. In 2016, an entity called The DAO raised 5.1 billion. All of this was done without a single registration being filed with the SEC, and many of these initial coin offerings--including several $100 million raises--were based on little more than a white paper and a few lines of sample code. Welcome to the new Digital Wild West. With the seemingly overnight success of this new funding mechanism, there is little legal scholarship addressing initial coin offerings and how, or if, such offerings should be regulated. This Article provides a non-technical legal audience with a foundational understanding of how the blockchain works and the role initial coin offerings play in this new economic ecosystem. The overarching thesis of the article is that our current securities law framework, a framework that dates to the days of the Great Depression, is ill-equipped to handle this new world of decentralized, global, pseudonymous fund raises on public blockchains. Instead, governmental regulators should be working with core development teams to build a regulatory framework that integrates investor protections directly into the computer code governing these systems. By embracing “code as law,” both regulators and core development teams can protect the innovation being funded by initial coin offerings, while at the same time injecting some much-needed investor protections into this new ecosystem. This Article begins with an introduction to the coming decentralized world, including an overview of both public blockchain technology as well the Ethereum platform, the primary public blockchain upon which initial coin offerings are being deployed. Central to this introduction is an explanation of how the decentralization and disintermediation brought by the blockchain has the potential to dramatically reshape our economic and social systems. Next, the Article explores the recent explosion of initial coin offerings, discussing how these offerings are structured, and how this new funding mechanism, if developed properly, has the promise of democratizing opportunities for economic innovation. The Article then examines the SEC\u27s early statements on initial coin offerings to illustrate the potential problems with applying a dated legal framework to this new technology. Finally, the Article concludes that the traditional securities law framework is ill-suited for the coming decentralized world because the SEC\u27s enforcement power over global blockchain platforms is limited. Recognizing that external legal frameworks cannot be forced upon public blockchain platforms, the Article argues for a collaborative process where governmental regulators work with core development teams to build a regulatory framework into the very fabric of these platforms, thereby providing investors protection, while at the same time embracing the concept of code as law
Biologics as the New Antitrust Frontier: Reflections, Riposte, and Recommendations, 2018 U. Ill. L. Rev. Online 209 (2018)
Get PDFDelaying Competition: How Sound Public Policy and Rigorous Antitrust Scrutiny Can Be Applied to Controversial Patent Settlements, 17 J. Marshall Rev. Intell. Prop. L. 655 (2018)
Get PDFThe rising costs of prescription drugs are a growing concern for many Americans. The restraint of trade for pharmaceutical drugs is a cause of rising costs for consumers, as companies seek to push potential competitors out of the market to maintain profits. This unlawful restraint of trade will be discussed in this comment. Specifically, this comment will focus on Pay for Delay agreements, mostly between generic versus brand name pharmaceutical manufacturers. The proliferation of these agreements only leads to an unsustainable market that discourages innovation and advancement, and promotes fraud, as invalid patents are used as leverage to prevent generics from providing more choices to consumers in a more competitive market. This comment will also address a regulatory structure that can prevent parties from forming Pay for Delay agreements, while balancing between respecting the rights of patent holders, protecting consumers, and promoting market competition
Unconstitutional Application of 35 U.S.C. §101 by the U.S. Supreme Court, 18 J. Marshall Rev. Intell. Prop. L. 144 (2018)
No full text“A or B” is inconsistent with “A not B.” This describes why the application of 35 U.S.C. § 101 by the U.S. Supreme Court is inconsistent with the U.S. Constitution, and thus unconstitutional. This article tracks the legislative history of patent eligibility from 1790 to 2011, and the parallel but inconsistent U.S. Supreme Court case law during this period. In following its own case law, the Court has shown extraordinary judicial activism, has penciled out two words of the federal statute (“or discovers”), and has penciled a word out of the U.S. Constitution (“discoveries”)
How a Zombie Condo Board Can Ruin Your Day: The Case for Rewriting Section 15 of the Illinois Condominium Property Act, 52 UIC J. Marshall L. Rev. 1 (2018)
Get PDFBy exploiting the highly ambiguous Section 15 of the Illinois Condominium Property Act, developers and their zombie Homeowner Association boards of directors can easily oust unwitting unit owners–and it’s all legal. In analyzing just such a case that was before the DuPage County Circuit Court, Huntington Condo. Ass’n v. Grimm, and viewed through the clarifying twin lenses of Eminent Domain and notions of fair play and justice, one cannot help but conclude that Section 15 of the Act is desperately in need of a dramatic rewrite. I propose one here. But more so, in the quest for clarity of the Act, we must also carefully consider that Section 15’s purpose is a delicate balance between the necessity of a defined way to dispose of distressed property, and the property rights of individual unit owners–and one of just compensation. In this article, we will first delve into the history of the Act in Illinois and its origins and purpose. Next, we discuss the types of properties subject to the Act, and how distressed condominium projects trigger Section 15 of the Act. Then, the deconversion process is explained. A comparison of valuation schemes is made. The Act is then examined to identify its ambiguity and how this ambiguity impacts the practical application of Section 15 of the Act to the deconversion process. Lastly, new Section 15 language is proposed