Category: Recent Publications

Viagra Did Not Work, but Michael Jordan Still Made It: Trademark Policy Toward the Translation of Foreign Marks in China

Copyrights & Trademarks, Current Volume, Intellectual Property, International, Recent Publications Leave a comment

By: Jyh-An Lee & LiLi Yang Most multinational enterprises (MNEs) register their original trademarks in Roman letters in China upon entering the Chinese market. However, many fail to develop and register corresponding Chinese marks because they do not understand local culture and consumers, overvalue consumers’ presumed brand loyalty, or neglect the accompanying trademark issues. This failure enables trademark squatters to register and hold the Chinese marks for ransom or local competitors to free ride on foreign marks using their Chinese translations or transliterations. This Article first introduces the complexity of translating a foreign mark into Chinese, which concerns complex linguistic, cultural, and business challenges. Based on recent court decisions, this Article systematically analyzes the legal basis on which an MNE may claim to protect the Chinese equivalent of its original trademarks. This Article then provides essential business and legal implications of China’s trademark policy toward translating foreign-language marks into Chinese.Download Full Article (PDF)Cite: 20 Duke L. & Tech. Rev. 36

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Space and Existential Risk: The Need for Global Coordination and Caution in Space Development

Current Volume, Recent Publications, Space Law Leave a comment

By: Chase Hamilton This Article examines urgent risks resulting from outer space activities under the current space law regime. Emerging literature alarmingly predicts that the risk of a catastrophe that ends the human species this century is approximately 10–25%. Continued space development may increase, rather than decrease, overall existential risk due in part to crucial and identifiable market failures. Addressing these shortcomings should take priority over the competing commercial, scientific, and geopolitical interests that currently dominate in space policy. Sensible changes, including shifting space into a closed-access commons as envisioned by the 1979 Moon Treaty, may help in achieving existential security.Download Full Article (PDF)Cite: 21 Duke L. & Tech. Rev. 1

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Homography of Inventorship: DABUS and Valuing Inventors

Articles, Current Volume, Patents & Technology, Recent Publications Leave a comment

By: Jordana Goodman On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience (“DABUS”) became the first computer to be recognized as a patent inventor. Due to the advocacy of DABUS’s inventor, Dr. Stephen Thaler, the world’s definition of “inventor” has finally fractured – dividing patent regimes between recognition of machine inventorship and lack thereof. This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship. This Article addresses the implications of international homographic inventorship – where countries have different notions and rules concerning patent inventorship – and the consequences for failing to understand the divergences that could result in patent invalidation. This Article adds to the literature by addressing Thaler’s tireless inventorship advocacy, highlighting that Thaler uses his position of privilege to argue for inventorship acknowledgement of his machine and simultaneously to relinquish his own inventorship recognition. To emphasize, there is no existing caselaw except the DABUS case where a potential inventor has argued for the acknowledgement of another inventor and simultaneously relinquished their own recognition – whether that unacknowledged inventor was human or not human. Thaler’s advocacy amplifies the need for continued conversation regarding closing the

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Professor Brandon Garrett on Exposing the Flaws in Forensics

DLTR Blog, Recent Publications, Scholar Interviews Leave a comment

By Brendan Clemente This past March, Duke Law’s Professor Brandon Garrett released his newest book, Autopsy of a Crime Lab: Exposing the Flaws in Forensics. Professor Garrett founded the Wilson Center for Science and Justice and studies the use of forensic evidence in criminal cases. Brendan Clemente, Duke Law & Technology Review’s (DLTR) Managing Editor, sat down with Professor Garrett to discuss the book. Thank you for joining DLTR to discuss your new book, Autopsy of a Crime Lab: Exposing the Flaws in Forensics. What made you want to delve into this topic in this book? My introduction to forensics came after law school. I took evidence in law school, for which I am glad now that I am now teaching it. We did not cover expert evidence. I did not take law and science classes, and I went to law school having turned away from math and science, like most of us lawyers do. When I was in practice, I worked at a civil rights firm where there were two types of cases one could gravitate toward: police brutality cases and wrongful conviction cases. I told the partners I wanted to work on the police brutality cases. The wrongful

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Food for Thought: Intellectual Property Protection for Recipes and Food Designs

Copyrights & Trademarks, Intellectual Property, Recent Publications, Uncategorized Leave a comment

By: Kurt M. Saunders and Valerie Flugge As any chef will tell you, cooking and food preparation is a creative, sometimes innovative, endeavor. Much thought and time is invested in selecting ingredients, developing the process for preparing the dish, and designing an interesting or appealing look and feel for a food item. If this is true, then it should come as no surprise that recipes, food designs, and other culinary creations can be protected by various forms of intellectual property, namely: trade secrets, design and utility patents, trade dress, but usually not copyright. This article considers how intellectual property law has been applied to protect recipes and food designs, along with broader issues relating to how these rights may overlap and their implications for competition. Download Full Article (PDF) Cite: 19 Duke L. & Tech. Rev. 159

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Ben Grunwald on Solving ”The Wandering Officer” Problem

DLTR Blog, Recent Publications, Scholar Interviews Leave a comment

By Ben K. Grunwald Last month, as Derek Chauvin’s trial began for the murder of George Floyd in Minneapolis, Minnesota, Duke Law Professors James Boyle and Ben K. Grunwald discussed “The Wandering Officer” problem, the common phenomenon in which law enforcement officers get fired at one law enforcement agency to be rehired at another while continuing to engage in the same conduct that got them fired in the first place. During this back and forth, which has been edited for length and clarity, the professors talk about Grunwald’s recent Yale Law Journal article with Professor John Rappaport from the University of Chicago on the issue and the policy proposals most likely to promote police accountability and other social reforms in the United States, but particularly in Black communities and other communities of color. You wrote a fascinating 2020 Yale Law Journal article, with Professor John Rappaport from the University of Chicago, called The Wandering Officer. Could you describe what a wandering officer is and what the goal of the study is? A wandering officer is a police officer who is fired by one law enforcement agency and then gets hired by another. The most famous example is Tim Loehman, who—just a few

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High Health Care Spending and Developing Technology: Proton Beam Therapy

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By: Yoojeong Jaye Han Rising health care spending is a source of concern in the U.S. With new, high-cost health care technology, paying higher prices for the use of new technology without considering cheaper, equally effective alternatives leads to inefficient spending. This Note focuses on proton beam therapy (“PBT”) for treatment of prostate cancer to explore several causes that contribute to high health care spending in the U.S. In treating prostate cancer, PBT has not been shown to be more effective than its cheaper alternative, IMRT. Yet, investors and many states continue to encourage its use for prostate cancer. This Note argues that inefficient use of PBT increased because existing standard for review of new health care technology and its reimbursement often suggest new health care technology will be reimbursed at a prime rate. Hence, private investors fueled the development of PBT Centers indiscriminately, expecting a high return on their investment. Then, this Note proposes several ways to encourage a more efficient use of PBT. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 369

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Opting Out: Biometric Information Privacy and Standing

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By: Michelle Jackson Biometric technology promises to reshape the modern economy. With the increased prevalence of biometric technology comes a heightened risk of data breaches and identity theft. To protect consumers, state legislatures have enacted biometric privacy laws. As more state legislatures define the intangible harm of data misuse, some federal courts have restricted what constitutes an injury sufficient to create Article III standing. This analysis misapplies Spokeo and undermines legislative efforts to protect individual privacy. Because of the important interests at stake with biometric information privacy, federal courts should follow the Ninth Circuit and recognize the misuse of that data as a sufficient injury to constitute standing. Consumers usually cannot opt out of new biometric technologies implemented at airport gates, shopping centers, and workplaces. The federal courts also should not use standing doctrines to opt out of the intangible harms characterizing the information age. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 293

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Measuring Baseball’s Heartbeat: The Hidden Harms of Wearable Technology to Professional Ballplayers

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By: John A. Balletta After two-and-a-half decades of labor peace in Major League Baseball, storm clouds of a player strike are brewing as the operating Competitive Bargaining Agreement comes under fire. That same CBA includes Attachment 56, the most expansive allowance of wearable technology of the four major American professional sports. While the privacy of the athletes’ data might be the foremost concern under Attachment 56, there are a myriad of untapped arenas involving the use and dissemination of data from wearables, including issues in good-faith contracting and contract and trade negotiations. After situating the wearables provisions in the context of the CBA and describing the approved technologies, this Note will identify three infrequently discussed problems in Attachment 56 before positing ways around these concerns. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 268

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