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Abstract. When is a design just a design, and when is it a trademark? Over the last several decades, courts have developed a clear framework for evaluating the distinctiveness of [...]

Table of Contents Introduction I. Keeping Secrets A. IP Rights Generally Expire B. Trade Secrets Don't (Seem to) Expire C. The Problem with Infinite Secrecy II. Trade Secret Law as [...], A trade secret, according to the conventional understanding, "expires" only once it is no longer kept secret. Keep the secret for decades or even centuries, as with the formula for Coca-Cola, and you can potentially protect it forever. That conventional wisdom is wrong. A company can "abandon" its trade secrets by failing to derive economic value from keeping them secret. Trade secrets can lose economic value simply because the information has become obsolete. But trade secret abandonment can also happen due to the conduct of the owner. A company that has been benefitting from a trade secret by selling products based on it can exit the market. It can take a product off the market and replace it with a newer version. Or it might develop a secret but then choose not to enter the market at all. Although courts recognize the statutory requirement that a trade secret must derive "independent economic value" from its secrecy, they underappreciate the role that requirement plays in setting a trade secret's end date, and they lack a clear framework for assessing whether information derives the requisite value in any particular case. We argue that courts should draw on trademark law's abandonment doctrine. In order to avoid losing their rights, trademark owners who cease using their trademarks in commerce for a certain period of time have the burden to prove they have an intent to resume use of the mark in the "reasonably foreseeable future." Trade secret law could benefit from adopting a parallel conception of abandonment. Properly understood, trade secret law already incorporates abandonment. We simply provide a clearer way to interpret and apply the statutory requirement of independent economic value. Trade secret abandonment has some surprising implications. Employees might have more freedom to operate under trade secret law than is commonly believed. Once a company has abandoned a trade secret, people who are in a position to know the secret--most likely, employees or independent contractors--should be free to disclose or implement it themselves. Trade secret holders might not like this. But it's important for innovation policy because it gives trade secrets that others have discarded a path to enter the market or the public domain. Trade secret abandonment can also help solve a very real problem facing one important class of people: employee-inventors. Trade secret abandonment provides an outlet for employee-inventors whose employers didn't use their ideas to take them elsewhere and start anew.

Table of Contents Introduction I. The Certification Mark as a Species of Trademark A. The Similarities B. Statutory Differences C. Consumer Perceptions of Certification Standards II. Exclusive Certification or Certification [...], Certification mark law--a branch of trademark law--itself enables consequences that undermine the law's own goals through inadequate regulation or oversight. Because the law allows certification standards to be kept vague, high-level, and underdeveloped, a certifier can choose to exclude certain businesses inconsistently or arbitrarily, even when those businesses' goods or services would seem to qualify for the certification mark (particularly to consumers). Moreover, even when a certification standard is clear and complete, certifiers can wield their marks anticompetitively. They can do so through redefinition--something certification mark law currently allows without oversight--to ensure that certain businesses' goods or services will not qualify for the mark. Both of these forms of certification mark manipulation undermine the goals of certification marks: to protect consumers by providing them with succinct information on goods' or services' characteristics and to promote competition by ensuring that any businesses' goods or services sharing certain characteristics salient to consumers qualify for a mark certifying those characteristics. The law should be restructured to curb this conduct. I advocate for robust procedural regulation of certification standardmaking and decisionmaking that would detect and punish poor certification behavior. Moreover, for anticompetitive behavior that nonetheless slips through the regulatory cracks, I suggest that attentive antitrust scrutiny be arrayed to catch it.

PROLOGUE CASE ONE: THE WASHINGTON SAILORS CASE TWO: THE NEBRASKA CORNHUSKERS CASE THREE: THE MICHIGAN STATE SPARTANS CASE FOUR: THE NOTRE DAME FIGHTING IRISH A note on baseball team names [...]

A. Trademark as Promise (144) The contractualist theory of producer-consumer relationships in trademark law offers a highly attractive justification of core trademark doctrine that is at least as convincing as [...]

INTRODUCTION I. THE DEVELOPMENT OF THE TESTIMONIAL/PHYSICAL DICHOTOMY A. Early Conflict over the Scope of Privilege B. Schmerber v. California: A Codified Divide C. Rationalizing Privilege 1. The excuse-based model [...], The neuroscience revolution poses profound challenges to current self-incrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self-incrimination Clause of the Fifth Amendment, no person shall be compelled to 'prove a charge [from] his own mouth,' but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to reframe the debate. It demonstrates through modern applications from neuroscience the need to redefine the taxonomy of evidence subject to the privilege against self-incrimination. Evidence can arise from the identifying characteristics inherent to individuals; it can arise automatically, without conscious processing; it can arise through memorialized photographs, papers, and memories; or it can arise through responses uttered silently or aloud. This spectrum--identifying, automatic, memorialized, and uttered is more nuanced and more precise than the traditional testimonial/physical dichotomy, and gives descriptive power to the rationale underpinning the privilege against self incrimination. Neurological evidence, like more traditional evidence, may be located on this spectrum, and thus doctrinal riddles of self-incrimination, both modern and ancient, may be solved.