IDEA Volume 62 Blog

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In this blog, we want to showcase our Associate Editors’ notes and recognize their hard work throughout the drafting process.  We encourage all of you to attend the annual Student Note Symposium in April 2022, more details to come. At this event, you can hear a short presentation from each Associate Editor and talk with them about their research and the nuances of each area.  You can also learn about IDEA and the UNH Law Review. Thank you and enjoy!

The Implications of Cloud Computing for Privacy and Trade Secrets

By Joshua Andrews, J.D. ‘23

The Right to Privacy was published by Samuel Warren and Louis Brandeis in 1890.  Since then, numerous countries have recognized and individual’s privacy as legally protectable.  One way privacy is protected is in tort law, where a plaintiff can seek redress for an intrusion upon seclusion when the intrusion is highly offensive to the reasonable person and involves matters of their private life.

Corporations have a means to protect their privacy as well.  A trade secret is a form of intellectual property that recognizes the value in allowing information to maintain a secret and punishes those who obtain the information through improper means.  A trade secret is something that has independent economic value and must be the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

These two legal protections have many similarities.  For instance, both types of protections are contingent on a court finding that particular actors behave reasonably or unreasonably.  In the case of the trade secret, whether the right owner took reasonable precautions, and in the case of privacy, whether the alleged right violator behaved unreasonably in their actions.  This allows for courts to consider the context in which the act occurred, and determine if the information was properly obtained.

More essentially, both trade secrets and the right to privacy protect information that is unknown by the general public.  In both scenarios, the information is no longer recognized as legally protectable once the information has been shared beyond the relevant parties.

As access to the internet has increased, new technologies have become essential in both commercial and private landscapes.  One example is cloud computing.  Cloud computing enables private individuals as well as large companies to backup and access information regardless of the user’s location by sharing this data with third party hosting sites.  This tool has become even more essential in light of remote work due to Covid-19.  With this new technology, there are potential problems in both privacy law and trade secrets.  This law review Note compares what this technology means for these protectable interests.

Intentionally Bad: Ending Planned Obsolescence through the Patent System

By Ivy Attenborough, J.D. ‘23

Planned obsolescence involves the creation of goods with an engineered end-date. More goods than ever are designed to go bad before their natural end of life, especially in the technology sector guilty of generating great volumes of electronic waste.  Planned obsolescence flies in the face of the intentions of the patent system.  Not only does it cause vast societal harm by increasing divide between different socioeconomic classes’ access to current technology as well as create hard-to-recycle waste but planned obsolescence decreases the quality of patents while increasing their economic potential for tech companies.  Whereas a patented good designed to last forces consumers to make few replacement purchases, a good designed to fail increases the number of items sold to consumers during the life of a patent.

As patent legislation simply cannot keep pace with the ever-evolving technology it seeks to govern, a revision to the America Invents Act cannot remove inventions designed with planned obsolescence in mind from patent protection.  Instead, a judicial exception should be used to further qualify the utility requirement of 35 U.S.C § 101 to eliminate inventions designed with a fleeting period of utility.  Such a judicial exception could be crafted—in a way no patent legislation passed by Congress could be—to allow inventions that are reasonably designed to have a short lifespan but disallow inventions advertised or known to be used for a significant period of time that, in all actuality, do not last.  Not only would such a judicial exception be beneficial to the bank accounts of buyers accustomed to needing to replace expensive technology every few years as well as reduce the amount of electronic waste generated by the tech industry, but it would comport with the intentions of the patent system.  It would equalize the exchange of information between patent holders and the public by failing to reward companies with a monopoly over goods that lack true operable utility.

Fashion Design in the IP landscape: Luxury or Utility?

By Stephanie L. Casino, J.D. ‘23

Is fashion art?  Even a "traditional" artist, such as a painter or sculptor, would be able to defend fashion as a form of creative expression; and surely designers all around the world would defend fashion as art.  Though fashion and the law seem to be worlds apart (with the exception of the Legally Blonde franchise), the law plays a large role in protecting designers and fashion businesses.  The courts in America purport to not engage in answering the question of "what is art," however, many of their decisions speak volumes regarding how fashion is categorized, and thus protected, in legal landscape.

Fashion is a trillion-dollar industry, making up 2% of the world’s GDP, and yet, U.S. IP protections for fashion design are limited due to clothing’s inherent utility.  The lack of legal protection for fashion allows fast-fashion companies to create copies of expensive, well-known luxury pieces and mass produce and sell them, with little to no repercussions.  Though counterfeits are expressly illegal, fast-fashion brands take advantage of the flimsy IP security for designers and continue to toe the line between knockoff and counterfeit.

Large fast-fashion companies are often sued by luxury brands, but they typically settle cases out of court.  Independent artists, however, are arguably most hurt by the current state of fashion design protection because they do not have the funds to support a legal battle with a large fast-fashion company, and these companies ultimately are able to steal work from these artists with no repercussions.

In the U.S., design patents are seemingly the exact protection that would aid fashion designers in the fight against fast-fashion knockoffs, however the expense and time necessary to obtain a design patent typically excludes that as the avenue of choice for legal protection.

Approaches to Artificial Intelligence Regulation and Data Protection in the European Union, China, and the United States

By John ‘Andrew’ Dominick, J.D. ‘23

Fears of artificial intelligence (AI) taking over the world have permeated the pages of science fiction for almost a century.  While the images of AI robots enslaving the human race provoke strong emotions, tangible concerns exist around the rapidly developing field of AI technology and its expanding application.  Will AI discriminate against already disadvantaged groups?  Will large technology companies misuse personal data without an individual’s consent?  Will government agencies spy on citizens without their knowledge?  These concerns and many more must be balanced with the benefits of AI.  To keep pace with the technology and to protect the public, government policies should require transparency to foster trust in these new technologies and ensure control of individual’s personal data.

To date, no consensus has been reached on government’s proper approach to AI regulation.  A wide variety of schemes have been proposed throughout the world.  Serious discussion around AI regulation began with the European Union’s 2018 “General Data Protection Regulation.”  In April 2021, the European Commission proposed the Artificial Intelligence Act (AIA), a draft for EU-wide regulation of AI.  The AIA classifies AI applications within tiers of risk. Applications of AI with unacceptable risk are banned, and lower tiers have regulations based on the apparent risk.  This approach attempts to strike a balance between stricter government regulation where the concern for misuse is highest and allows greater freedom for AI technology where the risks are lower.

China’s AI approach aims to position the country as a world leader in the industry within the next decade.  China has proposed several drafts and guidelines to promote ethical behavior around AI while maintaining strong government control of the technology.  In August 2021, the Cyberspace Administration of China released guidelines to regulate AI and increase the Chinese government’s control over the internet.  In September 2021, the Ministry of Science and Technology issued the “New Generation Artificial Intelligence Ethics Specifications.”  The document outlines six ethical guidelines to maintain human decision-making power.  The Chinese approach is to maintain strict control over all aspects of the technology and expand Chinese values throughout the world.  The approach causes great concern for Europe, the United States, and the rest of the world.

The United States has not proposed similar aligned guidelines.  Activity around AI has occurred at the Department of Commerce, the Federal Trade Commission, and the Food & Drug Administration with no consistent approach adopted at the federal level.  The agencies have only proposed guidance for companies to be transparent and avoid bias.  Since 2019, several states have proposed AI regulations with bills or resolutions being adopted in twelve states.  As the rest of the world moves forward with AI regulation, the United States must quickly progress to maintain its leadership in the field and provide guidance for the international technology sector.  With the concerning approach from China, it is important for the United States to work with Europe and other aligned countries to outline an approach that promotes progress, protects individuals’ data, and minimizes risks such as discrimination and bias built into the technology.

AI Systems: Are They Inventors?

By Stefan Greenewald, J.D. ‘23

Recently, there has been a global push by some to allow an AI system to be listed as the inventor on a patent.  Dr. Stephen Thaler created an AI system called DABUS, which he subsequently listed as the inventor on patents he filed, as the assignee, around the world. 

AI systems have been an area of substantial growth with a large industry of machine learning and neural networks.  Some argue that AI systems are able to think for themselves and even invent new technologies.  The fact that something was invented should be the determining factor, not who invented it.

In the United States (US), the United States Patent and Trademark Office rejected the application and Thaler appealed.  35 U.S.C. § 100(f) defines “inventor” as “the individual … who invented or discovered the subject matter of the invention.”  The US District Court for the Eastern District of Virginia ruled that based on the plain language of the Patent Act an AI system cannot be an inventor. 

While the United Kingdom and China have followed suit, Australia and South Africa have appeared to consider it a possibility.  The Australian court determined that the plain language of their laws does not exclude non-humans, while the South African laws do not even define “inventor.”  Based on the lack of a definition, South Africa has granted the patent, but it is now open to applications against it.

Traditionally, inventions require human ingenuity.  The question is are AI systems sophisticated enough to actually invent something.  Arguably, they are machines after all and are only a tool useful to aid the inventor to discover things.  All the intelligence of the system is in the programmer. 

This Note will lay out the law regarding listing AI as inventors on patents and the recent trends in different countries.

The Impact Trademark Law has on Influencer Responsibilities

By Autumn Klick, J.D. ‘23

With 72% of American adults using social media, most have at least seen an advertisement by an influencer, and many have actually made a purchase based on an influencer’s recommendation.  Social media influencers have significant power over their followers, which also means they have a substantial risk of deceiving the public.  For example, Kendall Jenner promoted the failure, Fyre Festival, but did not disclose she was being paid for the advertisement and falsely alluded to Kanye West performing at the festival.  After the court held Jenner had deceived the public, she settled the lawsuit for $90,000.

An additional influencer-responsibility includes ensuring the brands they endorse are not violating the Lanham Act.  A California court, in Petunia Products, Inc. v. Ordan & Fields, LLC, recently held that influencers can be held liable for promoting trademark-infringing brands.  This liability could create a responsibility for influencers to understand trademark law and research potential infringement by brands before agreeing to advertise their product.  Otherwise, companies may send cease and desist letters to influencers, demanding they remove their post, and threatening a lawsuit to the influencer in addition to the allegedly infringing brand.  The court noted that a paid advertisement was enough to be considered commercial use, making influencers vulnerable to liability under the Lanham Act.

Influencers have many duties to the public, including disclosing when their posts are advertisements, promoting non-trademark-infringing brands, and using the products they promote.  This Note will discuss whether it is appropriate to hold influencers responsible for breaches of these duties.

Non-Fungible Tokens as Digital Goods

By Andrea McCollum, J.D. ‘22

The rapidly growing marketplace for non-fungible tokens (NFTs) has taken the world by storm.  NFTs comprise generated (or “minted”) digital tokens that are stored using blockchain technology and which contain metadata tying the token to a particular digital asset.  NFT purchases effectively provide the owner with a unique link to the digital asset so that it may be viewed or used to authenticate an associated physical good.  The transfer of assets using NFTs now largely operates as a tool for monetizing all types of creative digital content, although the most widely known experiments have resulted from artists or sports teams leveraging the NFT platforms to offer exclusive content to fans.

Given the increasing number of brands entering the NFT marketplace to gain new interactions with consumers, it is not surprising that trademark protection is a growing concern and hotly debated topic for NFTs and their associated assets.  Trademark infringement claims generally require establishing a valid mark that is entitled to protection and use of the mark in commerce without the owner’s permission to sell or advertise goods.  Brands are rushing to file trademark applications for digital assets based on intense public interest in the expanding virtual world, which means that there will likely be many new registered marks that could be infringed in the future.  However, no courts have taken up any NFT-related trademark issues, although there are growing questions about whether transfer and sale of digital assets meets the requirements for use in commerce under trademark law. 

Determining whether trademark infringement claims and relevant defenses can be brought by owners of NFTs (and other virtual assets) and alleged infringers will require looking closely at the exact asset owned, and whether these assets meet the requirements for goods under the Lanham Act. Clarifying the status of NFTs and other digital assets as goods will be increasingly important for navigating the virtual world and ensuring brand protection when NFTs are sold.  This Note will argue that NFTs are unique goods that can convey information about source in commercial trade.  Some may think that permitting trademark infringement claims for digital goods will destroy distinctions between copyright and trademark law.  However, NFTs represent a new type of digital file, which is not intended to serve as creative content for consumption, but instead as a good that functions as an access point to a separate file that contains creative content.  This means that transfer of an NFT should be treated in a similar manner to the sale of physical goods for the analysis of trademark infringement claims. 

Social Media Influencers’ Role in Developing Secondary Meaning

By Colin Platz, J.D. ‘23

Trademark law has been around a very long time.  The first Trademark statute was passed in 1870, and the Lanham Act turned seventy-five years old this past summer.  Since the initial introduction of the Lanham Act on July 5th, 1946, there have been numerous revisions and amendments to the Act.  In fact, in December 2020 Congress passed the Trademark Modernization Act (TMA), which went into effect in December of 2021.  While the TMA brings certain aspects of trademark registration up to date with current standards and procedures, other areas of trademark law seem to be stuck in the past.  For instance, some courts are unsure of social media influencers’ role in developing secondary meaning.

The test for establishing secondary meaning was developed in the courts and asks whether the public has come to recognize the mark as an indication of the source, rather than the good.  Therefore, a mark has secondary meaning if the relevant consumers have come to perceive the mark as a source identifier.  Different jurisdictions favor different factors, but generally the test for secondary meaning is more or less uniform.  In considering secondary meaning most courts consider some variation of consumer survey evidence, direct consumer testimony, exclusivity, manner and length of use of the mark, amount and manner of advertising, amount of sales and number of customers, established place in the market, and proof of intentional copying by the defendant.  However, the factors listed above should not be rigid categories.  As consumers evolve, so should the factors courts consider in determining secondary meaning.

Over the years, advertisers have gotten more clever and consumers are exposed to brands in very different ways than they were in the 19th century. Social media and social media influencers play a huge role in brand development and brand marketing, but sometimes courts fail to adequately consider the impact of social media influencers on developing secondary meaning.  As consumer perceptions and sophistication evolves, so should the tests courts use to measure secondary meaning.  A good place to begin is with the recognition of social media influencers’ role in developing secondary meaning.

A Hard Pill to Swallow: Drug Companies Are Not Adequately Compensated for Lost Patent Term Under the Hatch-Waxman Act

By Lea Polito, J.D. ‘23

The U.S. patent system can be described as a quid pro quo between inventors and the public, with inventors being incentivized to inform the public of their new innovations by filing for patents in exchange for the right to exclude others from practicing their invention for the duration of the patent term.  Because the patent term defines the duration of potential market exclusivity for the patented invention, it is the primary means by which inventors receive a return on their investment in bringing their inventions to market.

New pharmaceutical drugs undoubtedly provide significant benefits to the public as well as huge profit potential for drug companies willing to invest in their development.  However, due to the lengthy FDA approval process, new drugs require an immense premarket investment of time and money, all while the patent term continues to run.  As such, compensating drug companies for this lost patent term is essential in maintaining an incentive for the continued research and development of new drugs.  Further, from a fairness standpoint, all inventions should be eligible for the same average effective patent life, new drugs or otherwise.

In order to mitigate this issue, the Hatch-Waxman Act, enacted in 1984 and codified at 35 U.S.C. § 156, allows applicants of new drug patents to obtain an extension of patent term equal to the time of the regulatory review period that takes place after the patent issues.  However, since 1984, the FDA approval process has lengthened, and patent term calculation has shifted from 17 years post-issuance to 20 years post-filing.  According to recent studies, these changes have impacted the clinical trial timeline and the applications selected for patent term extension by applicants, ultimately leading to a decrease in the effective life of new drug patents in recent years.  As such, this Note will argue that the patent term extension portion of the Act has become outdated.

First, this Note will provide an overview of the FDA approval process of new pharmaceutical drugs, as well as the current mechanics of patent term extension under § 156.  Next, this Note will analyze empirical studies suggesting that the current system fails to adequately compensate drug companies for the patent term lost during the premarket approval process.  Finally, this Note will provide suggestions for reforming the current FDA patent term extension system with an analysis of potential success by applying each suggestion to case studies of several drugs that obtained patent term extension under the current system.

How the Common Law of Bailments Controls Ownership in Scientific Studies

By Brittany Reeves, J.D. ‘23

Over the past few decades fundamental research and commercial development have become increasingly intertwined.  It is frequently the case that materials once viewed as fundamental now hold high commercial value as well.  With this merging of the fundamental with the commercial there is great monetary value in clearly articulating who owns what tangible materials and what intellectual property and when.  However, even though the highly sophisticated industry of biotechnology continues to become more complicated, the contracts governing the transfer of materials between academic institutions, biotechnology companies, and pharmaceutical companies remains rooted in the Common Law of Bailments.  Sharing research materials is essential to the continued progression of scientific research, but who will own or control downstream discoveries is not always clear and can have major implications for the parties involved.

Agreements between parties sharing research materials are known as Material Transfer Agreements (MTAs).  MTAs are legal documents used to define conditions surrounding exchanges of research data, facilitating the exchange such that the receiving party understands how they are allowed to use the data. An MTA is a type of bailment agreement.  A bailment is not a transfer of ownership, but instead is an agreement that outlines what should be expected when another party has temporary possession of tangible property.  As a type of bailment agreement, MTAs grant the recipient of research materials temporary possession of the providing party’s materials but not ownership.

Issues concerning who owns what arise when the material exchanged is improved upon by the receiving party, which can become highly important when the improvement leads to new intellectual property and holds great commercial value.  The doctrines of accession and increase come into play here and can help answer the critical question of who owns what.  My Note will focus on the irony of agreements in the highly sophisticated field of biotechnological research remaining rooted in the ancient concept of legal bailments and will recommend that MTAs should be drafted in a way that anticipates potential problems, particularly when a lot of money is involved and knowing who owns what is critical.

Duping Influence: How Recent Caselaw May Impact Trademark Infringement Regulation

By Ericka Solomon, J.D. ‘23

Take a moment to think about the last time you saw an influencer promoted advertisement on social media.  Odds are it was within the last day and likely within the last hour.  

In an increasingly digitalized world, people interact with social media content daily.  Such interaction often, if not always, involves consuming influencer content.  Influencers can be defined as popular content creators who build an online presence through personal branding and who have the potential to influence the actions and opinions of those who consume their content.  Because influencers have potential power over consumer ideas it is important there is some regulation over the content that they promote.

In 2010, Tiffany v. eBay made clear that a generalized knowledge of infringement of a seller’s trademark on a website like eBay does not constitute contributory infringement. When discussing influencer marketing of branded products, the standard is the same.  In fact, in Petunia Products, Inc. v. Rodan & Fields, LLC, Molly Sims, and Does 1-20, the judge accepted Defendant Sims motion to dismiss contributory infringement claims by stating that there was no evidence presented showing Sims had any knowledge or intent to induce infringement through writing a blog post promoting the infringing product.

However, the judge in Petunia Products refused to dismiss plaintiffs’ direct infringement claims. In this case, plaintiff’s product and trademark was an eyebrow makeup product called “Brow Boost” and the defendants potentially infringing product and mark was named, “Brow Defining Boost.” Molly Sims, a beauty influencer, wrote a blog post promoting the potentially infringing “Brow Defining Boost.” Although the contributory infringement claims were dismissed, the judge held that plaintiffs’ direct infringement claims could not be dismissed on a summary motion because the plaintiffs had successfully proposed a likelihood of confusion between the two products which was compounded by defendant Sims’ blogging.  If Sims is ultimately held liable for direct infringement, many influencers may want to take further precautions before agreeing to promote branded products.

Molly Sims is a well-known and respected influencer who was promoting a real and safe product, despite its potentially infringing name.  However, there are also “dupe” influencers who regularly promote fake products.  Some of these influencers are paid by fraudulent companies and knowingly promote these fake products for their own personal gain.  Perhaps they know the consequences, however, it is likely that they are naive to the potential repercussions that may follow from their knowing promotion of fake products.  Additionally, many promote fake products on their own accord making blog posts and YouTube videos with titles similar to, “Which is Better: Real of Fake.” Currently, it is unclear how companies are choosing to confront such influencers, whether inside or outside of the courtroom.  However, cases like Petunia Products may shed light on the likely consequences for promoting infringing products, especially if they are known to be dupes.

This law review Note will explore the relationship between influencers and the consumers they interact with.  It will also explain the potential impacts of the Petunia Products case and others on influencers and dupe influencers.  Lastly, it will propose several ways that influencers may protect themselves from potential trademark infringement litigation in the future.

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