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Abstract:
The article reviews the legal protections available for data tracked and stored on radio frequency identification (RFID) tags, generated when such tags are attached to goods which travel in the stream of commerce. In particular, the article explores the extent to which a person can own or control such data, and who that person is. While the universal product code, in the form of the printed bar code, allows merchants to track products by general product category, RFID allows merchants to identify and track individual items nearly anywhere in the world, because each item tagged has an individual electronic product code (EPC). When such embedded RFID tags are designed to include technology that can track and store data retrieved by sensors attached to the tag, this allows for each tag to create a detailed database of the movement and use of goods, stored locally on each tag. While such resulting databases may contain valuable information, the current legal protection for such data in the U.S. is limited. The article discusses direct ownership of the data contained on the tag under such theories as copyright and trade secret law, or indirectly through ownership of the hardware. Also discussed are legal controls limiting access to the data, even where a merchant does not own the data or the hardware.

RFID, UPC, EPCGLOBAL, DATA, DATABASE, tracking, EPC,

Abstract:
The article covers issues relating to protection of unregistered trade dress under Lanham Act section 43(a) in light of the Supreme Court's Wal-Mart Stores, Inc. v. Samara Bros. Inc. case. The article proposes a new system by which to determine whether trade dress should be protected from its first use in commerce, suggesting that a new category of distinctiveness for all trade dress be created, entitled "trade distinctiveness."

In Wal-Mart, the Supreme Court held that product design could never be inherently distinctive, but would always require proof of secondary meaning, also known as acquired distinctiveness. Unfortunately, this put the decision at odds with the Court's earlier Two Pesos decision, where the Court had determined that trade dress in the form of the design and décor of a restaurant could be inherently distinctive. Unable to fully reconcile the cases, Justice Scalia said that the trade dress in Two Pesos was either some form of packaging, or "tertium quid."

Criticism of the Supreme Court's trade dress doctrines has previously focused on whether the trade dress can function as an inherently distinctive trademark. Inherent distinctiveness is a concept which functions effectively with word marks, where a trademark's inherent meaning can be determined by reference to a dictionary. Since trade dress by its nature does not have an "inherent" meaning, the concept is ill suited to determine distinctiveness of trade dress. "Trade distinctiveness" replaces this analysis, substituting the meaning developed in the market place. If the design features claimed as trade dress have developed trademark significance by a custom in the trade, then the trade dress should be protected from its first use in commerce. This new category both reconciles these two Supreme Court cases, and provides a comprehensive system for evaluating the distinctiveness of trade dress generally.

trademark, trade dress, tertium quid, Wal-Mart, Samara, distinctiveness, Seabrook, Lanham, Two Pesos, Taco Cabana

Abstract:
The article covers issues relating to obtaining and perfecting security interests in certain kinds of intellectual property under Revised U.C.C. Article 9. In particular, the article focuses on how the recent revisions impact the treatment of various forms of intellectual property primarily protected under state law, as well as moral rights. The drafters of Revised Article 9 included a new form of collateral: commercial torts. Previously, torts were excluded as a type of collateral to secure a loan under Article 9. However, when revising Article 9, the drafters decided that certain torts held by businesses, and certain business related torts held by individuals, should be permitted to function as collateral, given the changing nature of the marketplace. However, the use of commercial torts as collateral is limited, both in the method of perfection of such torts, and in the complete prohibition of after acquired property clauses to commercial torts.

The article focuses on whether this change to Article 9 requires a reevaluation of whether certain intellectual property rights are better characterized as commercial torts rather than general intangibles. If so, this will place severe restrictions on the ability of debtors to use those forms of intellectual property as collateral. The article proposes a two part test to determine the proper characterization: First, is the intellectual property right one that exists primarily to vindicate interests of the owner? Second, is the intellectual property right alienable? Using this test, for example, moral rights can never be treated as general intangibles, whereas a trade secret is properly characterized as a general intangible

Article 9, UCC, U.C.C., bankruptcy, trade secret, publicity, moral right, secured transaction

Abstract:
To address the problem of determining what marks are famous under the Federal Trademark Dilution Act, the uneven application of fame standards by courts under the Act and the resulting difficulty in trademark screening, this article proposes the creation of a system for registering famous marks, namely a Fame Register. Unless a mark is registered on the Fame Register, the senior mark owner would not be entitled to bring a claim under the FTDA. There would be several benefits. First, it would create a single, uniform system to determine whether dilution law may protect a senior mark. Second, a Fame Register would create a searchable database of the limited number of marks that are eligible for protection under the FTDA. Third, a Fame Register would afford the owners of famous marks greater certainty about the scope of their protection; particularly if, as proposed below, registration constitutes prima facie evidence of fame in litigation.

trademark, dilution, fame, famous mark, infringement, FTDA