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Going Generic: A Linguistics Approach to Genericide in Trademark Law
Full text linkThis Article examines the phenomenon of trademark genericide—the process by which once-protected brand names like “escalator” and “trampoline” lose their legal status by becoming synonymous with entire product categories. Traditional methods used by courts to assess genericide, such as consumer surveys and dictionary definitions, are often criticized for their subjectivity and lack of scientific rigor. In response, this Article introduces corpus linguistics as a more reliable, data-driven alternative for determining whether a trademark has become generic.
By analyzing real-world language usage through large corpora, corpus linguistics can track the public’s shifting perceptions of a trademark over time. Using case studies of “escalator” and “trampoline,” the Article demonstrates how frequency analysis and semantic broadening provide clearer insights into when a trademark transitions from a brand identifier to a generic term.
The findings offer practical guidance for companies, urging them to be proactive in protecting their trademarks by understanding linguistic trends and avoiding common pitfalls that lead to genericide. The Article argues that incorporating corpus linguistics into trademark law can provide courts with a more precise and empirical method for assessing genericide, ultimately improving the protection of intellectual property in a rapidly evolving linguistic landscape
SAVING CAMELOT? NIL and the Future of Amateurism
Full text linkThis Article explores the future of intercollegiate athletics with a diminished (and perhaps even disappearing) amateurism model. Specifically, the Article argues that athletic conferences are in the best position to “save Camelot”—to preserve the aspects of college sports that make them beloved and distinctive—while at the same time realistically accounting for an evolving economic and legal landscape.
In Part I, the Article describes the economics of the NCAA’s current amateurism model. Part II explores the recent changes to the NCAA’s amateurism model in light of the Supreme Court’s decision in Alston v. NCAA and the widespread adoption of state name, image, and likeness (NIL) laws. In Part III, the Article surveys the uncertain future of amateurism in light of changing market and legal challenges. Finally, Part IV casts a vision of what it might mean to “save Camelot” in light of the disparate interests of universities and college athletes
NIL Tampering
Full text linkThe college athletics landscape has experienced several recent dramatic and monumental changes. In 2018, its governing body, the NCAA, implemented the transfer portal to help universities and athletes manage the process by which athletes transfer to another university. In 2021, the NCAA allowed every athlete the freedom to accept compensation in exchange for the use of their name, image, and likeness (“NIL”). Booster collectives quickly formed to facilitate NIL arrangements and now exert significant financial influence in the athlete recruiting and retention process. Tens of thousands of athletes have used the portal since its inception, with many seeking more NIL compensation at other universities. The number will only continue to grow because of a 2023 federal district court decision at least temporarily precluding the NCAA from requiring athletes to sit out a season of competition upon their second transfer.
While the NCAA greenlit the transfer portal and NIL, it maintained certain restrictions on recruitment by college coaches and NIL booster collectives. The increasing commercialization of college athletics and the incredible opportunities to generate university revenue and coaching compensation incentivize the type of on-field success that can only be achieved by recruiting and retaining the best athletes. These incentives can outweigh the motivation to adhere to the NCAA’s restrictions. Sure enough, coaches complain that colleagues and NIL booster collectives associated with other universities break the rules, putting rule followers at a competitive disadvantage. The NCAA’s ability and willingness to enforce its restrictions has suffered due to the risk of legal liability and a lack of resources. But the enforcement process can succeed in punishing coaches who impermissibly recruit athletes enrolled at other universities.
However, when an NIL booster collective recruits athletes enrolled at other universities, no such effective enforcement mechanism exists. With no effective NCAA process in place, a university that loses a prominent, revenue-generating athlete to another university because of an associated NIL booster collective’s behavior might consider legal action its only recourse. This Article concludes that a university in this situation would have a viable tortious interference with contractual relations claim against the offending collective. Such a case would be one of first impression with dramatic implications for college athletics. Further, such a case is increasingly likely
War and IP
Full text linkThis Article examines wartime and postwar protection of intellectual property rights, with a focus on the Russo-Ukrainian War that broke out in February 2022. It begins by showing that armed conflicts are not new to the international intellectual property regime and that this regime already contains robust structural features and carefully drafted safeguards, limitations, and flexibilities to protect intellectual property rights holders during wartime. The Article then explores the international intellectual property obligations of countries that are parties to an armed conflict as well as those that are not directly involved but have imposed sanctions on belligerent states. This Article further outlines the different proactive measures that policymakers can introduce to help protect intellectual property rights holders during and in relation to an armed conflict. This Article concludes by probing the deeper theoretical questions generated by wartime and postwar experiences in relation to innovation theory, intellectual property law, and international law
What is Deeply Rooted in the Constitution?
Full text linkIn a series of cases stretching over a century, the Court made a right’s roots a constitutive feature of its identity. Highlighting the analytic centrality of deep roots to the recognition of rights, Dobbs v. Jackson Women’s Health withdrew prior judicial recognition of a woman’s right to reproductive choice, arguing that such a right was not properly rooted in the American legal tradition. But what does it mean for a right to have deep roots? A surprising feature of American constitutionalism is that there is no single answer to the basic analytic question of what it means for a right to be deeply rooted.
As this Article explains, there are multiple ways rights have roots and can take root. The Court has variously found a right to have deep roots grounded in conceptual necessity, ancient history, developmental history, relational fit, or procedural status. This multiplicity has been a strength of American constitutionalism, offering multiple routes to recognize rights. But as this Article argues, if Dobbs is read to narrow the range of acceptable roots, it threatens the future of fundamental rights in ways that are inconsistent with a deep tradition in American constitutional practice. This Article argues instead for embracing a constitutional history and tradition that fosters the possibility of rights growth through a multiplicity of roots entanglements. In particular, this Article explores the importance of a history and tradition of recognizing rights that are rooted through their relation to other rights as an alternative to rights that are rooted in a long historical lineage.
In choosing to apply a narrow historical inquiry to identify roots, the Dobbs Court ignored the possibility of a right having conceptual or relational roots—alternatives deeply embedded in American constitutional practice. In so doing, Dobbs provides a case study for examining deeply rooted analysis as a method of fundamental rights inquiry. The opinion also demonstrates the pitfalls in adopting a narrow historical analysis, not only for the internal validity of the opinion’s reasoning, but also for the longterm future of fundamental rights. The Court claimed that by adopting a narrow fundamental rights methodology it would avoid the problem of substituting its values for those properly found in the Constitution. Contrary to these aspirations to value–neutrality, this Article demonstrates that the Court’s justification for overturning Roe and Casey depends on normative choices that selected (1) a particularly narrow version of a historical inquiry into the right’s roots; (2) a narrow framing of the right itself; (3) an emphasis on the claimed moral distinctiveness of a woman’s choices regarding her pregnancy; and (4) a reliance on an adverbial claim that prior analysis of the right’s roots were, in some unspecified manner, “egregiously wrong.” Each of these choices, this Article argues, are deeply flawed. The consequence of the Court’s value-laden analytical and framing choices, despite the majority’s claims to the contrary, is that the rationale of Dobbs threatens multiple other rights with roots previously recognized through the alternative methods that Dobbs ignores.
In contrast to Dobbs’ internally flawed attempt to narrow fundamental rights analysis, this Article examines the multiple meanings of deeply rooted to demonstrate the surprising organic constitutional implications of taking deeply rooted rights analysis seriously. By so doing, it lays the groundwork both for defending other rights susceptible to uprooting under Dobbs’ logic and for protecting the jurisprudential aspirations reflected in what Justice Kennedy described for the Court in Lawrence v. Texas as “the components of liberty in its manifold possibilities,” through which “every generation can invoke its principles in their own search for greater freedom.” As this Article demonstrates, static constitutionalism strictly hidebound to the past of the kind Dobbs seems to endorse is inconsistent with this other deeply embedded constitutional history and tradition of organic rights growth. Or, framed in another way, because the constitutional method of Dobbs is inconsistent with the method exemplified by prior opinions, the future of fundamental rights rests on recognizing the multiplicity of ways that rights can be deeply rooted in American constitutionalism
