Protecting Trade Dress in Once-Patented Subject Matter
December 29, 2006
The recent decision, <i>Fuji Kogyo Co. v. Pacific Bay Int'l, Inc.</i>, 461 F.3d 675 (6th Cir. 2006), confronts the question deliberately left unresolved in <i>TrafFix Devices, Inc. v. Marketing Displays, Inc.</i>, 532 U.S. 23 (2001), of whether a product design claimed in a prior utility patent can ever be protectable trade dress under the Lanham Act. Although setting a high bar to protectability, indeed a 'presumption' and 'heavy burden' that material claimed in a utility patent is functional and hence unprotectable once the patent term ends, the Supreme Court, of course, expressly elected not to foreclose such protection entirely. Thus, it refused the invitation of defendant TrafFix, and 'some of its amici,' to rule that 'the Patent Clause of the Constitution, Art. I '8, cl. 8, of its own force, prohibits the holder of an expired utility patent from claiming trade dress protection.' 532 U.S. at 35. Without itself addressing the constitutional question of how narrowly 'limited times' means 'limited times,' <i>Fuji Kogyo</i> does nothing to ease the burden in establishing trade dress protection for once-patented subject matter; it offers as well a new (if, perhaps, less than fully developed) analytical approach for applying the <i>TrafFix</i> presumption, asking whether the claimed trade dress would have infringed the expired patents.
Cape Town: Rail Just Around the Bend, Satellites Just over the Horizon
December 28, 2006
For the last nine months, participants in the aircraft leasing and finance industry have been dealing with the newly formed international registry for the registration of interests in aircraft and the changes in substantive law governing aircraft sale, lease, and finance transactions brought about by the ratification of the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol. The Convention and Aircraft Protocol were developed and are being promoted by'
Knowledge Management and Portal Technologies
December 28, 2006
Part one of this discussion on KM and portal technologies focused primarily on a historical review and the emergence of the '2nd generation' of KM: Leveraging technology to define KM and utilizing the Microsoft SharePoint architecture to aggregate contextual and task related information into an easily accessible form. This article will continue the modern KM technology discussion by focusing on the relevance of existing search technologies and the potential and viability of SharePoint 2007 as a KM and portal platform.
Technology and Policy Issues with Acquiring Digital Collections
December 28, 2006
Undeniably, one of the biggest content growth areas for electronic information resources is with the digitization of print materials. For well over a decade, lawyers have had full-text access to court cases, statutes, regulations and thousands of news sources the day they are published. What wasn't available until fairly recently was electronic access to deep historical collections of materials such as law reviews or legislative documents, let alone court filings or records. For materials of this nature that were available, they could rarely be obtained as scanned documents in collections that are easy to use.<br>In acquiring access to new digital collections, law firms and other information consumers need to think about issues of cost, technology requirements and ease of use. Beyond that, merely acquiring a new collection will not ensure that all people who need the information will know it exists when the need for that information arises. This article addresses several topics relating to digitized collections, framing the discussion by first discussing two legal-specific digitization projects available for private law firms.
<b><i>Commentary: </b></i>Just Looking: Should Internet Ignorance Be a Defense to Child Porn Charges?
December 28, 2006
Two appellate courts recently ruled that an individual who intentionally visited Web sites to view child pornography, but who did not intentionally save those images to his computer's hard drive, could not be convicted or punished for possessing images that were automatically saved due to the Web browser's cache functions. These rulings strike me as badly mistaken, for reasons that I shall explain further below.
Is Your Web Site COPPA Compliant?
December 28, 2006
In 1998, Congress passed the Children's Online Privacy Protection Act (COPPA), broadly expanding the Federal Trade Commission's (FTC) enforcement powers in the Internet arena. Since then, states and the FTC have become more active in regulating the collection, use and security of consumer's personal information generally. However, the protection of children's personal information remains a top FTC enforcement goal, and the commission has become more aggressive in enforcement of COPPA each year. Companies that fail to proactively act to ensure COPPA compliance do so at the risk of seven-figure penalties. <br>This article provides Web site operators with suggestions on how to comply with the spirit of COPPA when legal obligations are not crystal clear, as in the case when the operator of the Web site in question believes that it can make a good faith effort to be a 'general audience' Web site, but has reason to believe that the site may attract visitors under the age of 13 and is unsure how the FTC will view and treat the site.
Non-traditional Sources of e-Data In Investigations
December 28, 2006
From teenagers to retirees, the digital revolution has touched almost all aspects of our everyday lives. Widespread business use of voice mail, e-mail, instant messaging (IM), and sales-management systems, as well as use of portable devices, simplifies our work in many ways, but also makes electronic discovery much more complex.<br>This article describes some of the more prominent non-traditional sources of electronic data. The reader should be mindful of these sources when he or she develops a discovery work plan ' and should weigh the costs and benefits of each option.
Blog Defamation
December 28, 2006
Bloggers can be held liable for defamatory statements posted on their sites, regardless of whether the statements were original comments generated by the blogger or whether he or she republished the statements that someone else made.<br>The good news, though, particularly for bloggers and counsel who advise and represent enterprises where blogs are likely to be created and used (say, for instance, e-commerce or technology companies that supply or deal extensively with e-businesses), is that just as with traditional print publications, bloggers may raise a defense against defamation claims under Internet communication-protection statutes and the First Amendment.
Empowering Attorneys and Clients to Exchange Large Files Securely
December 28, 2006
Given the sensitive nature of attorney/client files, the challenge is how to give attorneys the ability to exchange the information in a secure way. Strategically, security is the easier part of the problem; the bigger issue is how to facilitate the exchange so that users are in control of the process instead of having to call for IT support every time information must be exchanged.
