We are delighted to announce the forthcoming online events for The CREATe Trade Mark Seminar Series, Spring 2024. Both talks are from 5.30pm to 6.30pm UK time. Full details, including abstracts and biographies, can be found 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, and one on innovative methodologies in researching current trade mark law.
The Series was launched in Spring 2022, with talks from Dr Jennifer Davis (University of Cambridge) on nineteenth century trade mark history, an interdisciplinary team from NYU – Prof. Barton Beebe, Dr Roy Germano, Prof. Christopher Jon Sprigman and Prof. Joel H. Steckel – on experimental methods. It has since also included presentations about trade marks and empirical methods by Prof. Florent Thouvenin (University of Zurich) and Daniel Gerber (University of Basel), and Prof. Ian Ayres (Yale Law School), Dr Xiyin Tang (UCLA School of Law) with commentator Prof. Paul Heald (University of Illinois School of Law) , and talks about trade mark history by Prof. Oren Bracha (University of Texas), Prof. Dev Gangjee (University of Oxford), Jose Bellido (University of Kent) and Prof. Kathy Bowrey (University of New South Wales), Elena Cooper (CREATe) and Prof. David Higgins (Newcastle University Business School) with commentator Prof. Alison Firth (University of Surrey).
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
SEMINAR 1: INNOVATIVE METHODOLOGIES IN RESEARCHING CURRENT TRADE MARK LAW
Time and place: Wednesday 6 March 2024, 5.30pm to 6.30pm, UK time, online.
Speaker: Dr Zhihao Zhang, Darden School of Business, University of Virginia, USA.
Chair: Dr Xiaoren Wang, CREATe Fellow/University of Dundee.
Title: From Scanner to Court: A Neuroscientifically Informed “Reasonable Person” Test of Trademark Infringement.
Abstract: Many legal decisions centre on the thoughts or perceptions of some idealised group of individuals, referred to variously as the “average person,” “the typical consumer,” or the “reasonable person.” Substantial concerns exist, however, regarding the subjectivity and vulnerability to biases inherent in conventional means of assessing such responses, particularly the use of self-report evidence. In this presentation, I will discuss my recent work that seeks to address these concerns by complementing self-report evidence with neural data to inform the mental representations in question. Using an example from intellectual property law, we demonstrate that it is possible to construct a parsimonious neural index of visual similarity that can inform the reasonable person test of trademark infringement. Moreover, when aggregated across multiple participants, this index was able to detect experimenter-induced biases in self-report surveys in a sensitive and replicable fashion. I will present ongoing work that applies a similar approach to music copyright infringements. Together, these findings potentially broaden the possibilities for neuroscientific data to inform legal decision-making across a range of settings.
Biography: Zhihao Zhang is an Assistant Professor of Business Administration in the Marketing area at the Darden School of Business, University of Virginia (UVA). Drawing from academic training and research experience from both consumer behaviour and cognitive neuroscience, he pursues a diverse and interdisciplinary research agenda revolving around consumer decision-making. In particular, he focuses on understanding the cognitive, computational, and neuroscientific mechanisms by which memory and knowledge (e.g., of brands, products, services, or social interactions) shape decisions. He also has a keen interest in using neuroscience to inform real world problems at the intersection of marketing and law, for example trademark and copyright infringement.
SEMINAR 2: TRADE MARK HISTORY
Time and place: Wednesday 13 March 2024, 5.30pm-6.30pm, UK time, online.
Speaker: Dr Barbara Lauriat, Texas Tech University School of Law, USA.
Chair: Dr Elena Cooper, Senior Research Fellow, CREATe.
Title: Goodwill Transactions and Social History.
Abstract: Most historical accounts of Anglo-American trademark law have depicted the concept of “goodwill” as a nineteenth-century legal creation, though there have been disagreements as to whether it developed concurrently with trademark protection or was an original foundational concept. These accounts are fundamentally incorrect as regards the history of goodwill itself as a property right, however. Commercial goodwill was recognized as an intangible property right at least as far back as the sixteenth century. Gaining gradual recognition as a trade custom, goodwill existed as commercial and cultural reality, eventually finding its way into the law over time. By the eighteenth century, goodwill as property was mentioned in British law, literature, and advertising; even government takings legislation began addressing the loss of goodwill separate from real property before 1800. Understanding that goodwill was already a well-established property right before the advent of modern trademark law adds an important piece to the puzzling legal narrative.
Although goodwill before the nineteenth century was understood as an intangible, alienable property right long before its appropriation as a trademark law concept, trademark law came to overshadow the broader and older form of property over the course of the twentieth century, particularly in the United States. Indeed, the history of goodwill and its absorption into trademark doctrines can help clarify the significant divergence between primarily formalistic trademark regimes, as are found in Europe, and primarily use-based trademark regimes, such as that adopted by the United States. Late nineteenth and early-twentieth century English and American courts adopted the preexisting legal concept of goodwill into different aspects of their legal regimes, setting them on very different theoretical and doctrinal paths. Today, the UK trademark system offers formalistic statutory protection for registered trademarks; it lacks any overarching law of unfair competition and protects goodwill through the common law tort of passing off. In contrast, the United States adopted common law goodwill as a central organizing concept of its trademark system. The fact that goodwill was a proprietor-focused, use-based right for centuries before modern trademark law helps explain why identifying goodwill as the foundational basis for US trademark and unfair competition protection tends to maintain the proprietor’s use at the centre of the analysis, despite judicial recognition of the other interests involved.
Biography: Barbara Lauriat is Associate Professor of Law and Dean’s Scholar in Intellectual Property at Texas Tech University School of Law where she teaches torts and intellectual property law subjects.