Deference to the Legislature in WTO Challenges to Legislation

Name: Deference to the Legislature in WTO Challenges to Legislation
Brand: Kluwer Law International
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Daniel Lovric(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 1. November 2012

376 Seiten

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Inhalt

Intro
Title Page
Copyright
Dedication
About the Author
Table of Contents
Preface
Chapter 1. Copyright
§1.01 Congressional Power
[A] Constitutional Grant of Power
[B] The Copyright Act
[C] Treaties and International Agreements
§1.02 Subject Matter of Protection
[A] Categories of Protected Works
[B] National Origin
[C] Excluded Works
[1] Intangible Expression
[2] Governmental Works
[3] The Idea/Original Expression Continuum
[a] Generally
[b] Merger
[c] Scenes à Faire
[D] Special Categories of Works
[1] Computer Software
[a] Software as a "Literary Work"
[b] Protection of the Code Itself
[c] Protection of Structure and "Look and Feel"
[2] Compilations and Databases
[3] Historical and Factual Material
[4] Utilitarian Works and Industrial Design
[a] "Useful Articles"
[b] Separability of Form and Function
[c] Sui Generis Protection for "Mask Works": The Semiconductor Chip Protection Act
[i] Generally
[ii] Substantive Conditions of Protection
[iii] Formal Conditions of Protection
[iv] Ownership and Transfer
[v] Nature of the Rights
[vi] Infringement and Remedies
[d] Sui Generis Protection for Vessel Hulls
[5] Architectural Works
[6] Sound Recordings
[7] Fictional Characters
§1.03 Conditions of Protection
[A] Formal Requirements
[1] Fixation as the Point of Attachment of Copyright
[2] Publication
[3] Notice
[4] Registration and Deposit
[a] Registration
[b] Registration Procedure
[c] Benefits
[d] Recordation and Registration
[e] Deposit
[5] Domestic Manufacture
[B] Substantive Requirements: "Writings" of "Authors" Consisting of "Original Expression"
[1] "Authors" and Their "Writings"
[2] Original Expression
[a] Generally
[b] Originality in Derivative Works
§1.04 Ownership
[A] Ownership of Copyright versus Ownership of the Material Object
[B] Divisibility
[C] Authorship
[D] Joint Works/Multiple Authorship
[E] Collective Works
[F] Works Made for Hire
[1] Work Prepared by an Employee within the Scope of Employment
[2] Specially Commissioned Works
§1.05 Transfer of Copyright Interests
[A] Transfer Defined
[B] Requirement of a Writing
[C] Termination of Transfers and Grants
[1] Nature of the Right
[2] Grants Made Prior to January 1, 1978
[3] Grants Made from and after January 1, 1978
[4] The Effect of Termination: Derivative Works
§1.06 Scope of Exclusive Rights
[A] The Right to Reproduce the Work
[1] The Broadly Defined Right
[2] Specific Statutory Limitations and Compulsory Licenses
[a] Library and Archival Copying
[b] Ephemeral Recordings
[c] Certain Copies of Computer Programs
[d] Reproductions for the Blind or Other People with Disabilities
[e] Home Audio Taping
[f] Compulsory License for Mechanical Reproduction
[g] Compulsory License for Public Broadcasting
[B] The Right to Prepare Derivative Works
[C] The Right to Distribute
[1] The Right of First Publication
[2] The First Sale Doctrine
[3] The Record and Computer Program Rental Exceptions to the First Sale Doctrine
[4] Importation and the First Sale Doctrine
[D] The Public Performance Right
[1] Generally
[2] "Performance"
[3] "Public"
[4] Statutory Exemptions: Generally
[5] The Specific Statutory Exemptions
[a] Sections 110(1) and 110(2): Classroom Exemption
[b] Section 110(3): Religious Organizations
[c] Section 110(4): General Not-for-Profit Exemption for Nondramatic Works
[d] Section 110(6): Governmental Agricultural Organizations
[e] Sections 110(8) and (9): Performance and Transmissions to Certain Handicapped Persons
[f] Section 110(10): Fraternal and Veterans
[g] Section110(5): Communication of Transmission of a Performance
[i] The "Aiken" Exemption for "Home" Type Equipment
[ii] Nondramatic Musical Works in Licensed Broadcast Transmissions
[h] Section 110(7): Performance Ancillary to Retail Sales
[i] Section 111: Exemptions for Secondary Transmissions
[j] Section 118: Noncommercial Broadcasting
[6] Performing Rights Societies
[E] The Display Right
[1] The Nature of the Right
[2] Limitations on the Display Right
[F] The Limited Performance Right for Sound Recordings
[G] Moral Right
[1] Background
[2] The Visual Artists Rights Act
[a] The Attribution and Integrity Rights
[b] Exclusions and Limitations
[3] State Moral Rights Statutes
[4] Droit de Suite
§1.07 Fair Use as a Limitation on Copyright Protection
[A] The Fair Use Concept
[B] Section 107-Codification of the Doctrine
[1] Scope and Purpose
[2] Parsing the Statute
[a] The Preamble: Productive and Transformative Uses
[b] The Enumerated Factors
[i] The First Factor-Commercial or Noncommercial Purpose
[ii] The Second Factor-Nature of the Copyrighted Work
[iii] The Third Factor-The Amount Taken
[iv] The Fourth Factor-Economic Impact
[C] Parody as Fair Use
[D] Fair Use of Utilitarian Works
[E] Fair Use and Photocopying for Research and Academic Purposes
[1] Library, Archival, and Research Copying
[2] Academic, Classroom Copying
[F] First Amendment Considerations
§1.08 Duration of Copyright Protection
[A] General Overview
[1] The Pre-1976 Renewal Right and the Renewal Term
[a] Vesting of the Renewal Right
[b] The Renewal Term As a New, Independent Term
[c] Assignment of the Renewal Right
[d] Automatic Renewal
[2] The 1976 Act Single Term
[B] Works Created on or after the Effective Date of the 1976 Act (January 1, 1978)
[C] Works Created but Not Published or Copyrighted before January 1, 1978
[D] Works with Subsisting Copyright Protection as of January 1, 1978
[E] Restoration of Copyright in Certain Foreign Works
§1.09 Infringement
[A] Procedural Issues in Infringement Actions
[1] Registration
[2] Subject Matter Jurisdiction
[a] Exclusive Federal Jurisdiction
[b] Pendent Jurisdiction
[c] Suits in the United States for Acts of Infringement Abroad
[3] Personal Jurisdiction and Venue
[4] Standing
[5] Statute of Limitations
[6] Actions against State Instrumentalities
[a] Sovereign Immunity under the Eleventh Amendment
[b] Abrogation of Immunity
[7] Misuse of Copyright
[B] Substantive Issues in Infringement Actions
[1] Substantial Similarity
[a] Generally
[b] Modes of Analysis
[c] Extrinsic/Intrinsic Tests, "Probative Similarity," and the Roles of Experts, Judge, and Jury
[2] Access
[C] "Innocent" Infringement
[D] Criminal Infringement
[E] Vicarious Liability and Contributory Infringement
[1] Vicarious Liability
[2] Contributory Infringement
[3] Online Infringement Liability Limitation
[a] Generally
[b] Transmission
[c] System Caching
[d] Storage
[e] Links
[f] Further Limitations on Liability of Nonprofit Educational Institutions
[g] Limitation on Liability for Removal of Material
§1.10 Remedies
[A] Injunctive Relief
[B] Damages
[1] Actual Damages and Profits
[a] Provable Damages
[b] Infringer's Profits
[2] Statutory Damages
[a] Registration as a Condition
[b] Amount of Damages: Range of Discretion
[c] Right to Jury Determination
[C] Costs and Counsel Fees
[D] Impoundment and Disposition
§1.11 Copyright Protection Systems and Copyright Management Information
[A] Generally
[B] Circumvention of Copyright Protection Systems
[1] Actionable Conduct
[a] Circumvention of Access Control
[b] Facilitating Circumvention of Technological Protection Measures
[c] Limitation on Analog Videocassette Recorders
[2] Exceptions and Limitations
[a] Nonprofit Libraries, Archives, and Educational Institutions
[b] Law Enforcement, Intelligence, and Other Government Activities
[c] Reverse Engineering of Computer Programs to Achieve Interoperability
[d] Encryption Research on Published Works
[e] Protection of Personally Identifying Information
[f] Security Testing
[C] Copyright Management Information
[1] Impairment of Copyright Management Information
[2] Exemptions and Limitations
[a] Law Enforcement and Other Government Activities
[b] Transmissions
[D] Enforcement and Remedies
[1] Civil Remedies
[a] Injunctive and Related Relief
[b] Damages: Actual and Statutory
[c] Increasing or Reducing Damages
[d] Costs and Counsel Fees
[2] Criminal Penalties
Chapter 2. Patent
§2.01 Sources of United States Patent Law
[A] Constitutional Foundation
[B] Statutory Foundation
[C] The U.S. Court of Appeals for the Federal Circuit
§2.02 Conditions of Patentability
[A] Disclosure Requirements
[1] Enablement
[2] Best Mode
[3] Written Description
[4] Definiteness Requirement
[B] Novelty and Loss of Right
[1] Requirements for Anticipatory Prior Art
[a] Date of Invention
[b] Strict Identity
[c] Anticipatory Enablement
[2] Section 102(a) Prior Art
[a] "Known or Used by Others"
[b] "Printed Publication"
[c] Geographical Limitations
[3] Section 102(e) Prior Art
[4] Section 102(g)(2) Prior Art
[5] Derivation: Section 102(f)
[6] Priority
[a] Conception
[b] Reduction to Practice
[c] Abandonment, Suppression, and Concealment
[d] Inventorship
[e] Inventive Activity Abroad
[7] Loss of Right: Statutory Bars
[a] Section 102(b): On-Sale and Public Use Bars
[i] Public Use
[ii] Experimental Use
[iii] On-Sale Bar
[iv] Third-Party Activity
[b] Section 102(d) Bar on Foreign Applicants
[8] Changes to the Novelty, Prior Art, and the Grace Period Provisions under the America Invents Act
[a] First Inventor to File
[b] Expansion of Prior Art
[c] The New Section 102(b) Grace Period
[d] Elimination of the Hilmer Doctrine
[C] Utility
[D] Nonobviousness
[1] Scope of the Prior Art
[2] Content of the Prior Art
[3] Persons of Ordinary Skill in the Art
[4] Secondary Considerations
[a] Commercial Success
[b] Long-Felt Need and Failure of Others
[c] Copying
[d] Licensing/Acquiescence
[5] Modifications Under the America Invents Act
[6] Products
[a] Machines, Articles of Manufacture, Compositions of Matter
[b] Living Organisms
[7] Processes
§2.03 Formalities
[A] The Patent Application & Issued Patent
[1] The Written Description
[a] Background of the Invention
[b] Summary of the Invention
[c] Detailed Description of the Invention
[d] The Drawings
[2] The Claims
[a] Composition of Matter Claims
[b] Process Claims
[c] Apparatus Claims
[d] Product-by-Process Claims
[e] Means-Plus-Function Claim Elements
[B] Procedures Before the Patent and Trademark Office
[1] Initial Processing of the Application
[2] Examination and Prosecution
[a] Formalities and Search by the Examiner
[b] Third-Party Submissions of Prior Art Under the America Invents Act
[c] Office Action
[d] Applicant's Response
[e] Reconsideration and Allowance
[f] Responses to a Final Office Action
[i] Appeals
[ii] Cancellation of Claims
[iii] Continuing Applications
[g] Publication
[h] Foreign Priority
[i] Interferences
[j] Derivation Proceedings Under the America Invents Act
[3] Appeals to the Courts
[C] Post-Issuance Procedures
[1] Reissue
[2] Reexamination
[3] Post-Grant Review Under the America Invents Act
§2.04 Ownership and Transfer
§2.05 The Rights and Limitations of the Patent Grant
[A] The Basic Exclusory Right
[B] The Scope of the Right to Exclude
[1] Temporal Scope: The Patent Term
[2] Geographic Scope
[a] Exporting a Claimed Invention
[b] Importing a Claimed Invention or Products Made By a Claimed Process Invention
§2.06 Infringement and Remedies
[A] Infringement
[1] Claim Interpretation
[2] Literal Infringement
[3] Infringement Under the Doctrine of Equivalents
[4] Indirect Infringement
[B] Defenses to Patent Infringement
[1] Noninfringement and Invalidity
[2] Patent Misuse
[3] First Sale, Implied License, and Repair/Reconstruction
[4] Experimental Use Doctrine
[5] Governmental Use
[a] Federal Government
[b] State Government
[6] Inequitable Conduct
[C] Remedies
[1] Compensatory Damages
[2] Exemplary Damages
[3] Injunctive Relief
§2.07 Design Patents
Chapter 3. Trademark
§3.01 Sources of Power
[A] Common Law Approach
[B] The Lanham Act
[1] Nationwide Protection
[2] Evidentiary Presumptions
[3] Warning Function
[4] Damages
[C] Significant Amendments to the Lanham Act
[1] Trademark Clarification Act of 1984
[2] Trademark Counterfeiting Act of 1984
[3] Trademark Revision Act of 1988
[a] New Definition of Use
[b] ITU Registration
[4] North American Free Trade Agreement Implementation Act
[5] Uruguay Round Agreements Act
[6] Federal Trademark Dilution Act of 1995
[7] Anticounterfeiting Consumer Protection Act of 1996
[8] Trademark Law Treaty Implementation Act of 1998
[9] Trademark Amendments Act of 1999
[10] Anticybersquatting Consumer Protection Act of 1999
[11] Madrid Protocol Implementation Act of 2002
[12] Singapore Treaty
[13] Anti-Counterfeiting Trade Agreement of 2011
[D] State Trademark Protection
[1] State Trademark Protection Statutes
[2] Deceptive Trade Practices Statutes
[3] State Dilution Statutes
§3.02 Subject Matter of Protection
[A] Introduction
[B] Categories of Marks
[1] Trademarks
[2] Collective Marks
[3] Certification Marks
[4] Service Marks
[5] Trade Names
[6] Domain Names
[C] Signs Which May Serve as Trademarks
[1] Words, Letters, and Slogans
[a] Personal Names
[2] Nonverbal Marks
[a] Alphanumeric Symbols
[b] Color
[c] Fragrance
[d] Designs
[e] Nontraditional Marks
[3] Trade Dress
[a] Generally
[b] Functionality
§3.03 Conditions of Protection
[A] Distinctiveness
[1] Inherently Distinctive Marks
[a] Arbitrary Marks
[b] Fanciful Marks
[c] Suggestive Marks
[2] Non-inherently Distinctive Marks
[a] Descriptive Marks
[b] Secondary Meaning
[c] Generic Marks
§3.04 Formalities
[A] Adoption and Use
[1] Priority-First to Use
[2] Sufficient Use
[3] Affixation
[4] Interstate and Foreign Commerce
[5] Eleventh Amendment Concerns
[B] Lanham Act Registration
[1] Use Applications
[2] ITU Applications
[3] Supplemental Register
[C] Maintenance
[1] Registration Duration and Initial Renewal
[2] Continuing Use Affidavits
[3] Loss of Trademark Rights
[a] Abandonment
[b] Voluntary Termination
[c] Involuntary Termination: Genericism
§3.05 Ownership and Transfer
[A] Initial Ownership
[B] Assignment of Trademarks
[C] Licensing of Trademarks
§3.06 Scope of Exclusive Rights
[A] Incontestability
[1] Mechanics
[2] Defensive Use of Incontestable Registrations
[3] Offensive Use of Incontestabilty
[B] Territorial Scope of Trademark Rights
[1] The Common Law Market Penetration Rule
[2] Scope of Concurrent Use Common Law Rights
[a] Good Faith
[b] Remoteness
[c] Market Penetration
[d] Natural Zone of Expansion
[e] Relevance of State Boundaries
[f] Secondary Meaning Marks
[3] Effects of Federal Registration
[a] Constructive Notice: Post Registration Use
[b] Freezing the Junior User's Market
[4] Concurrent Lanham Act Registration
[a] First User's Rights
[b] Correction of the Register by Federal Courts
[C] Product and Service Scope
[D] Dilution
[1] Fame
[2] Dilution Likelihood
[3] Dilution by Blurring
[4] Dilution by Tarnishment
[5] Specific Defenses to a Dilution Claim
[6] Preemption of State Laws
[7] Note on Dilution
[E] Cybersquatting
[1] Bad Faith Requirement
[a] Reverse Domain Name Hijacking under the UDRP
[2] In Rem Jurisdiction over Domain Names
[3] Domain Name Registrars
[4] Domain Name Dispute Resolution
[a] Resolving Disputes under the UDRP
[b] Complainant's Rights in a Mark and Similarity under the UDRP
[c] Rights and Legitimate Interests under the UDRP
[d] Bad Faith under the UDRP
[F] Keyword Advertising
§3.07 Rights in Unregistered Marks
[A] Lanham Act Section 43(a)
[1] Generally
[2] Endorsement and Sponsorship Confusion-Section 43(a)
[B] False Advertising
§3.08 Infringement and Remedies
[A] Likelihood of Confusion
[1] The Analytical Factors
[a] Circuit Variations
[b] Mark Similarity
[c] Mark Strength
[d] Similarity of the Goods or Services
[e] Channels of Trade and Advertising (Proximity)
[f] Consumer Sophistication and Care
[g] Actual Confusion-Survey Evidence
[h] Intent
[i] Likelihood of Bridging the Gap
[2] Second-Comer Doctrine
[3] Question of Law or Fact-Standard of Review
[4] Reverse Confusion
[5] Initial Interest Confusion
[B] Defenses
[1] Invalidity of Plaintiff's Mark
[2] Fraud
[3] Antitrust Violations
[4] Fair Use
[5] Laches, Acquiescence, and Estoppel
[C] Remedies
[1] Injunctive Relief
[a] Injunctive Relief against Domain Name Registrars
[2] Damages
[a] Profits
[b] Damages for Counterfeiting
[c] Damages for Cybersquatting
[3] Other Forms of Relief
Indicies
Index: Copyright
Index: Patent
Index: Trademark

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