We are delighted to announce the dates and speakers for online events comprising The CREATe Trade Mark Seminar Series, Spring 2023. Please see below.
As previously announced, The CREATe Trade Mark Seminar Series comprises two on-line talks about trade mark law each term: one on trade mark history (convened by Dr Elena Cooper), and one on innovative methodologies in trade mark research (convened by Dr Xiaoren Wang). The Series was launched in Summer 2022. It is open to scholars (including research students) of any discipline worldwide.
Zoom links for the seminars will be emailed a few days before the events to all on The CREATe Trade Mark Seminar Series mailing list. There is no need to RSVP. To join the mailing list, please contact Elena Cooper: elena.cooper@glasgow.ac.uk
THE SEMINAR ON 15 MARCH HAS SINCE BEEN CANCELLED DUE TO STRIKE ACTION BY THE UNIVERSITY AND COLLEGE UNION (UCU).
Further information about the dispute can be found here. We are trying to find a new date to hold this seminar and we will communicate it as soon as it is confirmed.
SEMINAR 1: TRADE MARK HISTORY
Time and place: Wednesday 8 March 2023, 9am to 10am, UK time, online.
Speakers: Prof. Kathy Bowrey, University of New South Wales, and Dr Jose Bellido, University of Kent.
Chair: Dr. Elena Cooper, Senior Research Fellow, CREATe.
Title: Researching Trade Mark Histories: Records and Methodologies.
Abstract: In 1930, the American advertising and trademark lawyer, Clowry Chapman, highlighted the importance and diversity of trademark records. This included preliminary interdepartmental memos, corporate resolutions, instructions to an artist, invoices, shipping instructions, waybills, orders from customers, and registrations. Interestingly, he also counted in the commodity and the container, a collection of exhibits that constituted, according to him, ‘a cycle of proof’. Taking Chapman’s insight as a point of departure, Kathy Bowrey and Jose Bellido will discuss their experiences in researching trade mark records for their recent book Adventures in Childhood. Intellectual Property, Imagination and the Business of Play (CUP, 2022). In doing so, they will consider different methodologies prompted by those records in exploring the history of intellectual property in the twentieth century.
Biographies:
Kathy Bowrey is a legal and cultural historian and Professor at the Faculty of Law and Justice, University of NSW (Australia). She is interested in how cultural commodification operates on a global scale. Her most recent works include Copyright, Creativity, Big Media and Cultural Value: Incorporating the Author, (Routledge, 2021) and Adventures in Childhood: Intellectual Property, Imagination, and the Business of Play (Cambridge University Press, 2022) [with Jose Bellido]. She is a Co-Director of the International Society for the History and Theory of Intellectual Property.
Jose Bellido teaches law at the University of Kent (UK). He is particularly interested in the history of intellectual property law and has additional research interests in legal theory, evidence and legal history. His publications include Landmark Cases in Intellectual Property Law (Hart Publishing, 2017) and Adventures in Childhood: Intellectual Property, Imagination, and the Business of Play (Cambridge University Press, 2022) [with Kathy Bowrey]
SEMINAR 2: INNOVATIVE METHODOLOGIES IN CURRENT TRADE MARK RESEARCH
Time and place: THE SEMINAR ON 15 MARCH 2023 HAS SINCE BEEN CANCELLED.
Speakers: Prof. Ian Ayres, Yale Law School, and Dr Xiyin Tang, UCLA School of Law.
Chair: Dr Xiaoren Wang, Lecturer in Law, University of Dundee and CREATe Fellow.
Title: Consumer Expropriation of Aesthetically Functional Trade Dress: Results from an Aesthetically Randomised Experiment.
Abstract: Trade dress, as a subset of trademark law, can offer potentially perpetual protection to a product’s design or packaging features if they aid consumers in identifying a product’s source. Yet these protected design features might be valued by consumers not only because of their source identifying function, but also because consumers find the design or package features beautiful, independent of the goodwill generated by the producer. Thus, under the doctrine of aesthetic functionality, manufacturers who produce red-soled shoes or whiskey with a melted wax seal might gain what courts have called a “non-reputation-related” competitive advantage, ultimately warranting the expropriation of the protected product feature into the public domain.
We argue that courts, in assessing questions of aesthetic functionality, should give particular weight to surveys asking consumers whether they would be better off if competitors were allowed to use a protected trade dress feature in their own products. Just as, under the doctrine of genericide, consumers are able to expropriate word marks if consumers find it more beneficial to associate the language feature of the trademark with competitors’ products, consumers should also be able to expropriate trade dress rights of a particular manufacturer if they find it more beneficial to have these design and packaging features available to the manufacturer’s competitors. Creating a genericide analog for cancelation of trade dress can further trademark’s central goal of protecting consumer welfare.
Our Article reports “proof of concept” results of our proposed consumer surveys with regard to seven different forms of existing trade dress—including not only Louboutin’s red-soled shoes and Maker’s Mark’s red-drip wax seal, but also Gucci’s famous “diamond motif” and Emeco’s Navy chair. We implement our surveys as a between-subject randomized experiment that allows us to causally estimate the intensity of consumer preferences as well as the impact of “guiding” subjects on the likely consequences of forgoing trade dress protection. Our results, while at best suggestive, found that judicial assessments of functionality were often not predictive of consumer protection preferences. For example, a statistically significant majority indicated they would be better off if other manufacturers were allowed to produce Emeco’s Navy chair design, notwithstanding a contrary judicial holding. We also found that large consumer majorities chose to protect two iconic Veblen goods: the Louboutin shoe and the Gucci Diamond Motif, even when informed that such protection would likely lead to higher prices—indicating a desire to preserve trade dress’ power to sustain social distinction.
Biographies:
Ian Ayres is a lawyer and an economist. They are the Oscar M. Ruebhausen Professor & Deputy Dean at Yale Law School, and a Professor at Yale’s School of Management. Ian has published 12 books (including the New York Times best-seller, Super Crunchers) and over 100 articles on a wide range of topics. They are the author of several empirical studies: Does Affirmative Action Reduce the Number of Black Lawyers?, 57 Stanford Law Review 1807 (2005) (with Richard Brooks); To Insure Prejudice: Racial Disparities in Taxicab Tipping, 114 Yale Law Journal 1613 (2005) (with Fred Vars and Nasser Zakariya); A Separate Crime of Reckless Sex, 72 University of Chicago Law Review 599 (2005) (with Katharine Baker); Shooting Down the More Guns, Less Crime Hypothesis, 55 Stanford Law Review 1193 (2003) (with John J. Donohue III); Measuring the Positive Externalities from Unobservable Victim Precaution: An Empirical Analysis of Lojack, 113 Quarterly Journal of Economics 43 (1998) (with Steven D. Levitt); Pursuing Deficit Reduction Through Diversity: How Affirmative Action at the FCC Increased Auction Competition, 48 Stanford Law Review 761 (1996) (with Peter Cramton); A Market Test for Race Discrimination in Bail Setting, 46 Stanford Law Review 987 (1994) (with Joel Waldfogel); and Racial Equity in Renal Transplantation: The Disparate Impact of HLA-Based Allocation, 270 Journal of American Medical Association 1352 (1993) (with Robert Gaston, Laura Dooley and Arnold Diethelm). Their two most cited law review articles are Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 Harvard Law Review 817 (1991) and Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale Law Journal 87 (1989) (with Robert Gertner).
Xiyin Tang is an Assistant Professor of Law at the University of California, Los Angeles, where she writes and teaches on copyright, trademark, and intellectual property law. Tang’s research focuses on the roles that technological evolution and new modes of dissemination play in the law of intellectual property. Her publications have appeared or are forthcoming in the Columbia Law Review, Michigan Law Review, Iowa Law Review, and Yale Law Journal, among others. She has previously served as a lead counsel for Facebook and an associate at Mayer Brown LLP and Skadden Arps Slate Meagher & Flom LLP, where she worked on a variety of transactional and litigation matters in the technology, media, and entertainment sectors.