IDEA Volume 66: Associate Editors’ Notes Announcement

This note will delve into all the above topics listed, in order to contemplate the positive and negative effects of these ‘influencer’ based ‘cottage industries’ have on trademarks. Whether these ‘cottage industries’ are a positive institution of our global economy, or whether further regulation should be pursued to strengthen trademark safeguards and further consumer protections. 

Cryptocurrency Fraud and the Role of Intellectual Property Law in Deception 

By Mikka Hyvonen, Class of 2027 

Fraud is prevalent in the cryptocurrency sector. Nearly every month, there is a news story about the latest rug pull, trading platform collapse, or abandonment of a project by the software development team. There are two Intellectual Property (IP) issues that contribute to cryptocurrency fraud. Our current IP protection scheme was not designed with cryptocurrency in mind, and many developers of prominent cryptocurrencies have decided not to pursue IP ownership. These two issues, if left unaddressed, will continue to enable fraud. 

One of the goals of the IP protection system in the United States is to foster innovation and the advancement of science and public knowledge. Innovators are incentivized to disclose their advancements with the public in exchange for a limited monopoly to market their products. Beyond financial incentives, IP rights allow owners to enforce their patents, copyrights, and trademarks and thus control the authenticity of products in the marketplace. This in turn provides protection to consumers from the threat of counterfeit products. When cryptocurrency developers forgo IP rights, they deprive themselves of a useful tool to self-police fraudulent ripoffs. 

This note explores the challenges faced by Bitcoin on the road to achieving IP protection as a case study. Bitcoin generally does not qualify for intellectual property protection due to its unique decentralized design, community governance and commitment to open-source principles. While these features are core to Bitcoin’s philosophy, they also contribute to an environment where fraud can exist unchecked. This note argues that the IP system should create pathways for unconventional technology to qualify for protection while also urging cryptocurrency developers to embrace IP ownership to help self-regulate the sector. 

Sports, Science, and Security: Should Aggregated Professional Sports Biometric Data be a Trade Secret? 

By Stephanie Jackson, Class of 2027 

What if you could know your starting quarterback would tear his ACL at the next game? Would you still offer him the same contract? Most teams today have access to this information because most professional players wear biometric data trackers. The sports biometric data tracked includes players’ oxygen stats, heart rate, and more, which, when entered in large data systems, can determine a player’s or even a team’s anticipated performance and injury likelihood. Teams aggregate this data to optimize training, game, and injury-prevention strategies. 

Once a player’s biometric data is collected and aggregated with their teammates, who owns it? Is it the player, the team, or the third parties who create the data systems? Unlike a password, biometric data cannot be changed later. Once it’s leaked, there’s no way to bottle it back up. Several professional leagues have implemented regulations requiring a player’s consent before their team can use their biometric data. However, the power imbalance between a team and a signing player raises questions about whether it is fair to place a player in this position. Additionally, state laws govern biometric data privacy, so for national teams, the guidelines they must follow may vary by location. Finally, the legal definition of “biometric data” typically excludes what most consider “sports biometric data.” 

Given the holes in current privacy legislation, could trade secrets serve as a way to regulate this industry? This note will explore who owns players’ biometric data and how current trade secret regulations may be used to protect it once the data is aggregated. Additionally, this note will explain why sports biometric data is valuable and how teams could employ secret- 

keeping mechanisms. Finally, this note will briefly discuss alternative measures to protect biometric information for professional athletes. 

Controlled Digital Lending in the Modern Copyright System 

By Rebecca Luna, Class of 2027 

Libraries have long served as gateways to knowledge, providing free public access to books, research materials, educational resources, and even physical tools. As reading increasingly moves into digital spaces, libraries face a growing challenge: they do not truly own the eBooks they purchase. Instead, libraries license digital books under restrictive terms that limit lending, impose high costs, and are subject to publisher revocation of access. At the same time, many physical books owned outright by libraries sit unused as readers shift toward digital formats. To address this dichotomy, some libraries have adopted a practice known as controlled digital lending, which allows a library to digitize a lawfully owned physical book and lend the digitized copy to one user at a time, while restricting access to the physical copy during the loan period. 

Controlled digital lending exists in a legally uncertain space. The Copyright Act’s specific provision that allows libraries to make reproductions of copyrighted works for preservation and research purposes (Section 108) was drafted several decades before widespread digital lending and does not clearly authorize controlled digital lending. As a result, courts rarely analyze controlled digital lending issues under Section 108, rather turning to its more flexible neighbor, the fair use defense of Section 107. Fair use considers factors such as the purpose and character of the use, the nature of the work, the amount and substantiality used, and the effect on the market. 

Recent cases demonstrate the evolution of Section 107 as the primary tool for adjudicating digital-era copying practices. In Monsarrat v. Newman, the First Circuit relied on fair use to dismiss the copyright claim rather than engaging with more specific statutory provisions, such as Section 108. Further, Warhol v. Goldsmith’s narrowing of transformativeness under fair use creates increased uncertainty in what constitutes fair use by libraries, leaving public access to books vulnerable. 

This note argues that this evolution of fair use, especially in the wake of Warhol v. Goldsmith, should be harnessed to affirm the legality of controlled digital lending, which both aligns with fair use’s purpose and fills the statutory gaps left by Section 108 in ensuring equitable public access to books. Further, it contemplates potential legislative updates to Section 108 and the broader implications of controlled digital lending for libraries, publishers, and equitable access to digital reading materials. 

When “Real” is Relative: The Legality of Dupes in the Marketplace 

By Kathleen McCarthy, Class of 2027 

CNBC reports that TikTok videos with the hashtag #dupe have now received nearly six billion views. Short for “duplicate,” the term “dupe” refers to any product that imitates another good in its product or performance. While dupes are not a new phenomenon in the marketplace, consumer attitudes towards them have shifted from reluctance to have a “knock-off” product to proud celebrations of their scored deals. In recent years, “dupes” have earned a reputation for genuinely competing with higher-end products, as many consumers understand them to offer basically the same good at a notably lower price. Accordingly, many companies operate a business model that depends on absorbing “inspiration” from trending products and selling their own versions at markedly lower price points. 

While dupes are celebrated by many, they are litigated frequently by companies who are concerned about retaining their customer bases and protecting their brands. However, this type of litigation is often met with numerous obstacles. For example, in Arcona, Inc. v. Farmacy Beauty, LLC, the Ninth Circuit held that plaintiff Arcona, Inc. could not receive relief from Farmacy Beauty for its use of Arcona, Inc.’s registered trademark “EYE DEW” because despite remarkable similarities, consumers were expected to notice the differences in the respective packaging. Some authors speculate that this decision marks a point after which courts will not find a likelihood of confusion unless the products are identical. Relatedly, since dupes are often fundamentally functional in what they replicate, trademark law cannot sufficiently protect against this, as it does not protect a branded item’s functionality. 

The growing presence of dupes in the marketplace and the expanding accessibility to them present novel intellectual property law questions, as well as the opportunity to revisit old ones. This note explores the nuances of how courts are responding to these questions and evaluates whether the law adequately balances the interests of brands and consumers. 

Piracy or Preservation: Analyzing Video Game Emulation Under Current Copyright Law 

By Jaden Militello, Class of 2027 

Exclusivity is the driving force behind the modern video game market. It is common practice for video game publishers to enter into agreements with technology developers such as Sony or Microsoft wherein they agree to have their game released exclusively on that developer’s video game console. 

As the distribution of video games through physical mediums such as optical discs or cartridges becomes a dying practice, gaming companies have begun to exercise increased control over the digital distribution of their products. New practices such as limited video game releases or locking games behind monthly subscription services are now industry standards. In an attempt to circumvent these restrictions, video game emulation has become increasingly popular among gamers. These emulators enable players to download and play video games on their personal computers, completely evading the distribution restrictions placed on these games by developers. 

Consequently, video game emulation has become a frequent point of discussion within the video game industry. The lack of legal precedent or uniform interpretation of copyright law has led numerous video game developers to take contrasting views on the subject. Some developers permit consumers to use emulation software for their games as long as doing so does not impact their current market, whereas other developers will not hesitate to bring legal action against anyone who creates or distributes emulation software regardless of the actual financial harm these activities may cause. The fact that these emulators also have a wide range of uses outside of the video game community further complicates the issue of how courts should address this technology. This uncertain legal landscape has created a sense of frustration among video game players who wish to experience influential games that have since been lost to time, and causes confusion among game developers who seek to protect their artistic works against what they consider to be digital theft. 

This note will analyze current copyright law including safe harbors from copyright infringement such as fair use and relevant provisions of the DMCA. Furthermore, it will assess the policy arguments posited by proponents of video game emulation software as well as those who oppose their use, and this note will propose a manner in which video game emulation can be used that should be considered permissible by courts. 

Floral Arrangements & Fixation 

By Carol Pickford, Class of 2027 

Floral arrangements have been a form of art for time immemorial. They can range in complexity from simple and common, like bouquets of tulips, to the startingly complex and unique, like Natalie Gill’s famous, two-story tall installation for the San Diego Museum of Art made from thousands of carnations and dozens of tumbleweeds. However, for florists, life isn’t all sunshine and roses. Unlike artists who utilize other mediums, a florist’s creations are presumptively gatekept from copyright protection—preventing them from possessing the exclusive right to use, reproduce, and distribute their work and limiting their ability to profit from their craft.  

One of the three main requirements for copyright protection is fixation. For a work to be fixed, it needs to be sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. In 2011, two cases—one about a garden and the other about a bowl of noodles—redefined how copyright law treated organic material with far reaching consequences. Under the new interpretation, organic (and especially living) material is in a state of perpetual change and therefore is, by its nature, too dynamic to be fixed. So, because flowers are fleeting, they fail fixation. 

This article argues that floral arrangements are distinct enough from noodles and gardens to be in a category of their own. As the world continues to change and become ever more connected, floral mimicry is on the rise. Considering the varied means to display cut flowers and advances in technology to physically arrest their decay and conceptually preserve the ability to copy them, the reasons to revisit the matter are mounting. Floral arrangements are increasingly able to satisfy the fixation requirement and maybe it’s time that someone gives it a try. 

A Bitter Spread: How Mayo Smothers Diagnostic Innovation 

By Annie Quinn, Class of 2027 

Any “new and useful” invention is patentable under § 101, right? This appears facially true in the language of the statute, but the legal meaning of patentability is far more complex. The Supreme Court has drastically narrowed the meaning of patentable subject matter by designating categories of patent ineligible subject matter: abstract ideas, natural phenomena, and laws of nature. So, as it turns out, not just any “new and useful” invention is patentable. 

Landmark patentability cases Alice and Mayo are notorious for narrowing the meaning of § 101 by creating a two-step test to determine patentability of inventions directed at patent-ineligible subject matter. Because innovation in the field of biotechnology necessarily involves natural processes at some level, the Alice/Mayo test has become a major hurdle for patenting inventions like diagnostic methods. 

This article explores the Federal Circuit’s overly harsh application of the Alice/Mayo test on diagnostic methods through an analysis of Ariosa Diagnostics v. Sequenom. It asserts that patenting a diagnostic method is virtually impossible under the current approach. This article also analyzes the inconsistencies in patentability case law and warns that the current rejection of diagnostic method patents will squash innovation. 

Born Branded: Trademark Law in the Age of Kidfluencers 

By Molly Sammon, Class of 2027 

Federal trademark law generally bars registration of marks that incorporate a living person’s name, portrait, or signature. Section 2(c) of the Lanham Act enforces this prohibition to protect individual autonomy and prevent false association, permitting registration only with the written consent of the identified individual. When the individual is a minor, however, the USPTO allows a parent to provide that consent on the child’s behalf. This administrative practice weakens § 2(c)’s protective function, enabling parents to obtain federal trademark rights in their children’s names without any formal mechanism for the child to later disaffirm, revoke, or reclaim those rights upon reaching adulthood. By accepting parental consent as sufficient, trademark law treats a child’s identity as something a parent can authorize and control, rather than as a right that belongs to the child. 

Recent high-profile disputes illustrate the consequences of this approach. Kim Kardashian and Kanye West have publicly clashed over trademark ownership of their children’s names following their divorce; Luka Dončić pursued legal action to reclaim his own name from a trademark registered by his mother when he was a minor at the outset of his basketball career; and Beyoncé and Jay-Z spent more than a decade litigating to register their daughter Blue Ivy’s name. Taken together, these cases reflect a growing norm under which parental consent enables the commercialization of children’s identities before the children themselves can meaningfully participate in those decisions. 

This practice is especially troubling given society’s recent reckoning with the harms of childhood fame. Long dismissed as the cost of success, abuse and coercion of child performers are now widely acknowledged through recent former child stars’ accounts of exploitation and lasting mental health struggles. Yet just as that societal shift began, social media reset the clock. The traditional barriers that once limited childhood fame, dissolved and were replaced by platforms that allow children to become famous from the comfort of their homes and at unprecedented scales. Child fame is now easier to attain and much harder to regulate. 

This note argues that the USPTO’s parental-consent practice under § 2(c) conflicts with the purpose of federal trademark law, and with constitutional and family-law principles governing minors’ rights, consent, and parental authority. By permitting parents to trademark their children’s names, the USPTO contributes to normalizing the commercialization of children and treats their identities as federally protected assets, ignoring the gravity of the long-term consequences embedded in what is treated as a mere procedural step. Limiting or prohibiting such registrations would better align trademark law with its commercial foundations and affirm that childhood is not a market commodity. 

Carving Products of Nature at Their Joints 

By Peter Schroen, Class of 2027 

Skilled butchers and philosophers alike have long been aware that, while there may be many different ways to take apart an animal, some make more sense than others. Plato analogized knowledge of the Forms to a recognition that, like an animal, the world has inherent divisions. Our most successful theories about the nature of reality are consequently ones that “carve nature at its joints.” In contemporary discussions, this philosophical butchery concept is often used to describe our ability to distinguish entities of different kinds existing in nature. Such “natural kinds” may be thought of as “the meat between the joints along which all good theories cut,” and are discovered in nature rather than simply invented. 

The identification of kinds found in nature is not merely the province of abstract metaphysical theorizing. Indeed, whether something qualifies as a “natural kind” is in some sense a central inquiry in whether an invention is entitled to a patent. Courts have held that if a claimed composition or article of manufacture may be considered a “product of nature” without more, it is not directed to patent-eligible subject matter under 35 U.S.C. § 101 and should therefore be refused or invalidated. In addition to judicially-created exceptions to patentability, Congress has decided to further limit the patent-eligibility of certain kinds by statute. Following the enactment of § 33 of the Leahy-Smith America Invents Act (“AIA”) in 2011, claims “directed to or encompassing a human organism” are prohibited. As of this writing, courts have not weighed in on the meaning of “human organism” or what it means to be “directed to or encompassing” such. We are thus presented with the question of whether AIA § 33, considered together with the jurisprudence surrounding 35 U.S.C. § 101, is a sharp enough instrument to “carve products of nature at their joints,” that is, permit courts and the USPTO to determine when a human organism is impermissibly encompassed by the claims. 

This Note will present the case that, while the instrument would benefit from sharpening and further explication, courts should be able to meaningfully interpret AIA § 33 when considering its plain meaning and legislative history, and applying appropriate canons of statutory construction. When consulting these methods of interpretation in the context of AIA § 33, a common theme of organismal parthood relations will emerge. In other words, whether subject matter is patent ineligible under AIA § 33 involves an inquiry into whether it is directed to a human “part” that is distinct from a human “whole.” Furthermore, when AIA § 33 is viewed from this perspective, it can be seen how the statute would prohibit claims directed to organic subject matter in which human parts work together for the benefit of a human whole, even assuming that the subject matter is inventive and would not be considered a “person” from either a philosophical or legal standpoint. Accordingly, AIA § 33 can be efficacious in carrying out the bioethical policy aims of Congress in a manner that is not made redundant by existing patentability requirements associated with Title 35 or the United States Constitution. In order to illustrate this point, the part/whole framework in this Note will be used to assess the patentability of human organic subject matter produced by two different means: 3D bioprinting and “bodyoids.” 

When State Trademark Registration Matters 

By Trivani Shahi, Class of 2026 

State trademark registration is easy to dismiss as redundant because the Lanham Act dominates modern trademark practice. State trademarks are registrations issued under state statutes that sit on top of common law use rights and mainly operate inside a state’s borders. This paper explores how this system usually stays in the background, but it can be genuinely useful in three situations: time sensitive enforcement, federal use in commerce requirements, and developing practices and classification in emerging tech. In those moments, it can shift leverage, shape remedies, and drive behavior in ways the federal system will not match on the timeline that matters. 

Those three situations are illustrated in three scenarios. First, in sports events where the infringement window is short, state law can support quick injunction posture and local enforcement against pop up counterfeiting. Second, is where federal lawful use in commerce rules create registration issues, like with marijuana businesses that operate openly under state law and the state trademark registry in California. Lastly, state filings can serve as an interim anchor while federal examination practices and legal classification catch up, like in cryptocurrency and NFTs. Taken together, these examples show that the state trademark registration is not redundant, but practical. 

The Devil Wears Data: Comparative Lessons for Regulating AI in Luxury Ads 

By Moira Sullivan, Class of 2026 

Artificial intelligence has officially joined the fashion industry… and unlike most employees, it never sleeps, never ages, and never asks for credit. Luxury brands now deploy digital runway models, AI-enhanced product imagery, and virtual brand voices that are ‘perfectly’ on message at all times, the results can be dazzling. But they also raise some awkward questions: at what point does AI-driven enhancement become misleading under existing consumer-protection law; are undisclosed synthetic content compatible with informed consumer choice; does ‘perfection’ engineered by machines distort the authenticity luxury brands depend on; and how much artificiality will consumers tolerate before their belief breaks. In the United States, the legal system has yet to give a clear answer, leaving brands to experiment with AI-powered marketing under rules written for a much more analog world. 

For now, U.S. regulation amounts to a stylish shrug. The FTC Act, the endorsement Guides, and a growing patchwork of state laws prohibit deception in broad strokes, but offer little guidance on how those principles apply when ads are generated, enhanced, or delivered by machines. They do not say when AI use must be disclosed, how synthetic content should be labeled, or what standards should govern the data used to train these tools. For an industry built on storytelling, heritage, and trust, this ambiguity can turn cutting edge campaigns into legal and reputational risks. 

Across the Atlantic, regulators are being far less laissez-fair. The EU’s AI Act, the Digital Services Act, and guidance from UK advertising authorities have begun to demand transparency, documentation, and traceability in AI-driven advertising. These regimes recognize that consumers are not just buying a handbag or a jacket; they are buying beliefs. When AI quietly edits, invents, or animates the message, that belief can fray. Especially if brands cannot explain what role the technology played. 

This Note argues that the U.S. needs its own fashion-forward rulebook for AI in marketing; one that offers more than “don’t be misleading” and less than a full regulatory straightjacket. It will propose a practical blueprint: clear disclosures when AI materially shapes an ad, verifiable provenance metadata, baseline standards for training data contracts, and structures risk assessments for AI-powered campaigns. The goal is simple: let AI keep strutting down the runway, but with enough guardrails to ensure it does not trip over consumer trust on the way. 

Symbiotic or antagonistic? The coextensive delicacy between Double Patenting and Patent Patricide 

By Ching Tsao, Class of 2027 

Under 35 U.S.C. §101, the U.S statutory basis allows for only one patent per invention. Further, the doctrine of statutory double patenting bars the issuance of multiple patents that are commonly owned and patentably indistinctive - obvious variant - inventions. The purpose is to prevent the unjust extension beyond the 20-year patent term. Though a judge-made doctrine, obviousness-type double patenting (ODP) grants a patent to an indistinct variant - only when accompanied by a terminal disclaimer. By truncating the additional terms of the later patent from those of the former, ODP also safeguards against unfair enrichment while encouraging refinement and retaining procedural flexibility. Operating in parallel with double patenting are the Patent Term Adjustment (PTA) and Patent Term Extension (PTE) doctrines, which award additional term extensions due to administrative or regulatory delay, respectively. Those additional terms may amount to billions of dollars, particularly in the pharmaceutical sector. An issue arises when a second patent is deemed an indistinct variant; the grant of an extended term renders the earlier patent invalid under ODP. 

Patent Patricide, under ODP, refers to the above-mentioned legal dilemma in the intellectual property realm where a successively filed “child” patent is relied upon as a defense strategy to invalidate a prior “parent” patent. Because the grant of the later-filed, indistinct patent will constitute unjust enrichment, against which ODP is intended to safeguard, a successful assertion of ODP as a defense in litigation could cause plaintiffs to limit their damage or lose their patents altogether. 

The common practice in patent prosecution is first to obtain a patent with a narrower scope that protects only key aspects of an invention, followed by continuations to broaden coverage. Most may have done so without realizing that the later-filed continuations were patentably indistinct to an earlier-filed one, and without appreciating the ensuing implication in Patent Patricide. As the ruling in In re Cellect may have been perceived as opening the floodgates to Patent Patricide, patentees might now, in response, choose to scale back their pursuit of continuation and develop compact portfolios. They do so out of concern that their ensuing continuations could render their earlier-filled parent patents invalid. As a patent prosecutor serving clients with legal service needs, I dedicate this article to understanding the implications of the evolving ODP landscape for their portfolio development. Strategic filing and prosecution decisions must now account for heightened ODP scrutiny and its potential impact on patent terms, its enforceability, and portfolio value.