Recent uclalaw_plltwps items

Competition and Congestion in Trademark Law

Tue, 25 Aug 2026 00:00:00 +0000

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this paper, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being branded that giving just one firm a monopoly over those words provides that firm with a meaningful competitive advantage—an artificial advantage granted by the state. This problem becomes worse as the number of firms producing (and branding) a type of product increases.The more words cordoned off by...

Denying Prejudice: Internment, Redress, and Denial

Tue, 25 Aug 2026 00:00:00 +0000

In the early 1980s, Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi marched back into the federal courts that convicted them during World War II for defying the internment of persons of Japanese descent. Relying on suppressed exculpatory evidence discovered in the national archives, they filed writs of error coram nobis to overturn their convictions. Remarkably, this litigation was successful and fueled the extraordinary redress movement, which culminated in federal reparations for surviving internees. Yet, a dark side to this victory has never been discussed, until now. In granting the petitions, the Judiciary absolved the one branch of government that has never been held accountable for the internment: itself. Specifically, the lower federal courts adopted an official legal history that insulated the wartime Supreme Court from any fault. According to that account, the Supreme Court was simply duped by conniving officials in the Departments of War and Justice, who suppressed...

Fixing Functionality in Design Patent Law

Tue, 25 Aug 2026 00:00:00 +0000

This contribution to the Berkeley Technology Law Journal's spring 2021 symposium, Navigating and Rectifying the Design Patent Muddle, responds to Peter Menell and Ella Corren's important article, Design Patent Law's Identity Crisis. It agrees with Menell and Corren that design patent law's ornamentality requirement should get more attention because that requirement is supposed to differentiate design patent from utility patent. It also agrees that current law does not exclude functional design features aggressively enough. It suggests, however, that there really are two distinct but related problems with ornamentality doctrine.The first problem is that the Federal Circuit has reduced the concept of ornamentality to nonfunctionality: The only question courts and the Patent Office ask in considering whether a design meets the statutory requirement of ornamentality is whether the design features are nonfunctional. The second problem is that the Federal Circuit defines functionality...

Design Problems

Tue, 25 Aug 2026 00:00:00 +0000

This Essay draws on our empirical research into designers and their work to investigate the limits of intellectual property law for achieving its goal of progress in the design context. We focus on two related aspects of our research and also address a pressing doctrinal question in design patent law. The two research questions we discuss are: (1) how do designers conceive of and solve design problems through innovative design practice?; and (2) how do designers incorporate human values of coherence, inclusivity, and sustainability in their process, imbuing their practice with a kind of politics? The related doctrinal question concerns patent law's obviousness doctrine, which recently has been restored in the design patent context, but in ways we consider incomplete and to which we offer several improvements. Specifically, we emphasize the role of constraints under which designers work, and how those constraints can guide evaluation of the problems designers seek to solve.

Progressive Politics and the Courts: Lessons from the United States

Tue, 25 Aug 2026 00:00:00 +0000

In recent years, contested political issues in the US have been subject to strategic judicial challenges that attempt to reopen political debates on a more favorable battleground. For example, twice in the four years after Congress and President Obama enacted health reform, legal challenges subjected this progressive achievement to a final veto point: the consent of an ideologically fractured Supreme Court. Conservatives attempted to achieve through the courts — citing novel legal doctrines — a policy goal of enormous consequence, which they could not achieve through the legislature. Party actors used the judiciary as an institutional veto for the political process; a final means to block a policy change that American progressives had for generations fought to secure. Conservatives made similar legal challenges to nearly all of President Obama’s major initiatives, in policy areas including oversight of the financial system, environmental regulation, and immigration.Further, recent...

Partisan Constitutionalism: Reconsidering the Role of Political Parties in Popular Constitutional Change

Tue, 25 Aug 2026 00:00:00 +0000

Scholars have long understood that political parties play an important role in shaping constitutional culture over time. This occurs most obviously through judicial appointments but also by participating in the shaping of public opinion and passing legislation affecting the scope of our fundamental commitments. But recent legal challenges to the healthcare law highlight the ability of political parties to use courts to shift the scope and meaning of our policy and constitutional commitments also in the very short run, through their strategic support for high-stakes public litigation.In both the NFIB and King challenges, some number of political opponents of the healthcare law recognized in the developing legal case an opportunity to extend a fight that had been waged in the political branches (at both the state and federal level), to a new and potentially more favorable battleground. This paper seeks to identify, for the first time, the mechanisms that allow political parties...

Crimsumerism: Combating Consumer Abuses in the Criminal Legal System

Tue, 25 Aug 2026 00:00:00 +0000

Crimsumerism: Combating Consumer Abuses in the Criminal Legal System

Negative Action Against Asian Americans: The Internal Instability of Dworkin's Defense of Affirmative Action

Tue, 25 Aug 2026 00:00:00 +0000

Ronald Dworkin has forcefully argued that because affirmative action does not violate the constitutional rights of Whites, it must be allowed to do the work of promoting racial equality. But the sword he forges to justify affirmative action has a double-edge that cuts unexpectedly against the liberal orthoýdoxy. In particular, Dworkin's theory justifying affirmaýtive action for certain minority groups, consistently applied under plausible empirical conditions, can authorize what I call negative action against Asian Americans.

By negative action, I mean unfavorable treatment based on race, using the treatment of Whites for comparison: Negative action against Asian Americans is in force if a university denies admission to an Asian Ameriýcan who would have been admitted had that person been White. The fact that Dworkin's theory justifies both affirmative action for racial minorities and negative action against Asian Americans suggests an internal instability within his theory....

Fair Measures: A Behavioral Realist Revision of 'Affirmative Action'

Tue, 25 Aug 2026 00:00:00 +0000

New facts recently discovered in the mind and behavioral sciences have the potential to transform both lay and expert conceptions of affirmative action. Drawing on recent findings in implicit social cognition (ISC) and applying a legal methodology called behavioral realism, the authors advance four arguments. First, evidence of pervasive implicit bias allows us to avoid problematic backward- and forward-looking justifications for affirmative action and instead focus on addressing discrimination here and now. Second, evidence of biased interpretation and stereotype threat suggests that merit is currently being mismeasured, and that more accurate measurement processes should be adopted. Third, evidence of the malleability of implicit bias suggests interventions different from the traditional social contact hypothesis, such as deploying debiasing agents. Finally, instead of an arbitrary deadline, a better terminus for various affirmative action programs is when our society reaches...

Regulating Location Incentives

Tue, 25 Aug 2026 00:00:00 +0000

In recent years, a growing share of state and local budgetary resources has been diverted to a small number of firms through multi-billion-dollar location incentive megadeals, as represented by Amazon’s HQ2 search and Wisconsin’s Foxconn boondoggle. These companies have become adept at devising new mechanisms for extracting the public resources of local communities to secure a competition advantage over their market rivals. But legal scholarship has not considered the possibility that dominant firms’ incentive demands might implicate the statutory protections enacted to protect against unfair methods of competition and corporate dominance more broadly. This Article develops a historical, economic, and institutional case for using latent authority under the FTC Act to study the market consequences of inefficient incentive megadeals—and regulate certain anticompetitive practices that cause cognizable harms.This Article uses location incentive megadeals to explore how federal regulation...

Taking Scale Seriously in Technology Law

Tue, 25 Aug 2026 00:00:00 +0000

Issues of scale—the relationship between the amount of an activity and its associated costs and benefits—permeate discussions around law and technologies. Indeed, it’s not much of an exaggeration to say that scale is the reason for most technology regulation.

But it’s not always clear how lawmakers and judges conceptualize “scale” when approaching questions around automated technologies. Scale is often used intuitively, just to mean “more.” But scale is not always just about more—scale can introduce new harms and benefits along different dimensions, not simply costs or efficiencies of greater magnitude.

In this Article, we argue for a more sustained interrogation of the role of scale in law, one that is more sensitive to the distinction between what we describe as “scale is more” and “scale is different.” When lawmakers and judges fail to properly categorize the role of scale in a particular context, they risk ignoring or misidentifying harms, misdiagnosing the...

Investigating Design

Tue, 25 Aug 2026 00:00:00 +0000

Design is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation.Despite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap and is drawn from original data collected over several years interviewing and observing designers where they work. Our interviews provide a rich background on the design field(s), the nature and value of design, and designers’ goals and values.Studying designers and the practice of design is not only economically...

Trademark Spaces and Trademark Law's Secret Step Zero

Tue, 25 Aug 2026 00:00:00 +0000

When is a design just a design, and when is it a trademark? Over the last several decades, courts have developed a clear framework for evaluating the distinctiveness of certain unconventional marks, especially those typically conceived of as “trade dress.” The Supreme Court has drawn a line between product packaging, on the one hand, and product design, on the other. Packaging features are treated just like any other potential trademark in the sense that we protect them automatically if they are inherently distinctive, and we require evidence of secondary meaning if they aren’t. Product design, by contrast, is different: like color, it is incapable of being inherently distinctive and can be protected only when it has acquired secondary meaning.There’s just one problem with this fundamental rule: it isn’t true. Or at least, it isn’t the whole truth. As we show in this article, sometimes courts and the Trademark Office don’t recognize features like logos as being part of a product’s...

Welfare Reform at Twenty: The Consequences of Making Work Status a Proxy for Deservingness

Tue, 25 Aug 2026 00:00:00 +0000

Twenty years ago, President Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), the culmination of what had started as his campaign promise five years prior to “end welfare as we know it.” The law ended the country’s only cash entitlement program for poor families with children, replacing it with a fixed-budget, state-administered program that offers lifetime-limited cash assistance to some but not all needy families and requires recipients to participate in work activity as a condition of receipt. The reform significantly altered our safety net’s protections, not to mention our national politics, and its effects are still debated today. In $2.00 a Day: Living on Almost Nothing in America, leading poverty researchers Kathryn J. Edin and H. Luke Shaefer add a new urgency to this debate by documenting the survival stories of families who have fallen into the gaps that PRWORA created — which, researchers increasingly agree, are much...

Trade Mark Protection for Digital Goods

Tue, 25 Aug 2026 00:00:00 +0000

A number of recent US cases involve attempts by authors or publishers of creative works to use trade mark or unfair competition law to control the reproduction or use of those works. For example, consider a movie the copyright protection for which has lapsed. Can the creator of the movie claim that copiers of the film commit trade mark infringement by including in their copies some content that appears in the original movie – perhaps the movie studio’s logo, or a famous scene? Or consider a website that allows artists to upload and offer for sale digital models of various goods where the models include recognisable designs and/or logos. Does the website operator commit trade mark infringement simply by distributing the digital files, from which someone might print a physical good that bears the trade mark?These sorts of claims raise important questions about the boundaries of different forms of intellectual property, particularly the distinctions between trade mark, copyright,...

Asian Americans: Engaging Online

Tue, 25 Aug 2026 00:00:00 +0000

The Internet has rapidly become a familiar communications medium at the workplace, at home, and on the streets. Fortunately, this trend has not passed Asian Americans by. Notwithstanding substantial variance among subpopulations, it is fair to say that Asian Americans as a racial group are on average well-connected to the Internet. What then are the implications for Asian American civic engagement? This Chapter addresses that question, first, by examining how Asian Americans are currently using online communities, with special focus on ethnic-specific forms of Internet-mediated engagements. Next, it analyzes a specific aspect of political engagement - voting - which may soon be strongly influenced by the Internet. Finally, it explores how the increasing significance of computer-mediated communications might alter or disrupt how race operates both online and off, and what that might mean for Asian America.

Design Patents Aren't Patents (And It's a Good Thing Too)

Tue, 25 Aug 2026 00:00:00 +0000

In design patent law we have created a monster—a chimera, a hybrid that sometimes looks and acts like a patent regime and then, unexpectedly, doesn’t. Courts in design patent cases sometimes apply the rules as they would in utility patent cases, sometimes modify those rules for the design context, and sometimes ignore the utility patent rules altogether. The consequences of that incomplete adoption of utility patent rules are grossly underappreciated. Among other things, it has wreaked havoc on the law of novelty and nonobviouness— doctrines that are supposed to ensure that we grant design patent protection only to new and meaningfully different designs. And it has too often resulted in rules that ignore how designers actually work. In this Article, we suggest that the problem stems from trying to fit design into a framework that was intended for the very different context of inventions. There are good reasons not to use the utility patent infringement rules for design, even...

A Qualitative Method for Investigating Design

Tue, 25 Aug 2026 00:00:00 +0000

This chapter describes our qualitative study of designers and design practice. It situates the study in the broader field of empirical studies of intellectual property, and it describes in detail the methodology and benefits of a qualitative interview study of designers and design practice to shed light on some of the persistent puzzles in design law. The chapter focuses on four lines of inquiry: defining “design” and “design practice” from within the profession; exploring the various inputs to design practice and the process of “problem solving” designers pursue; understanding what “integrated” form and function mean to designers; and explaining the features of “successful” or “excellent” design as a professional standard.

E-Racing E-Lections

Tue, 25 Aug 2026 00:00:00 +0000

Electronic voting is inevitable. It will significantly affect the process of electing and governing, with important consequences on race, race relations, and social justice. This paper argues that on matters of electing, we should not let short term concerns about digital divide blind us to long term possibilities. Specifically, we should pay close attention to how cyberspace can be specifically designed to alter preferences and attitudes, political as well as social, of its inhabitants in particular ways.

On matters of governing, the spread of the Internet may encourage more instantaneous forms of direct democracy. This is bad news for racial minorities because they are numerical minorities and people vote more in their self-interest than in the public interest. To respond to the possibility of a digital tyranny of an electronically mediated majority, this paper urges racial minorities to prepare to play smart, to leverage technology to counter numerical disadvantages....

Privacy in Atlantis

Tue, 25 Aug 2026 00:00:00 +0000

This Socratic Dialogue is set in the nation state of Atlantis. The Queen has charged the Counselor to consult learned stakeholders to forge a course of action on the matter of privacy. Accordingly, the Counselor has called forth the Philosopher, Economist, Merchant, and Technologist to the great Hall of Discussion. Through a hard-nosed, pragmatic dialogue, the Counselor comes to believe that form has been privileged over substance in the privacy debate. Regardless of whether privacy is viewed as property or dignity, one must confront similar core problems in establishing privacy policy. And regardless of the framing, quite similar solutions may be adopted.

Fees, Fines, and the Funding of Public Services: A Curriculum for Reform

Tue, 25 Aug 2026 00:00:00 +0000

Since 2018, the Liman Center at Yale Law School and Harvard Law School’s Criminal Justice Policy Program (CJPP), in partnership with the Fines & Fees Justice Center and the Berkeley Law Policy Advocacy Clinic, have collaborated to mitigate the problems faced by people of limited means and resources who interact with criminal punishment systems around the United States. Through a series of workshops and materials, we have examined how law has enabled and, on occasion, limited these harms, experienced disproportionately by communities of color.Budget pressures are part of what drives state and local governments to rely on monetary sanctions. Reform efforts have, at times, been stymied by arguments that governments “need” the money generated by regressive fines and fees. In 2008, during and after the Great Recession, state and local governments responded to sudden budget pressures by searching for new streams of revenues—including from a host of legal assessments. Given that...

Information Privacy in Cyberspace Transactions

Tue, 25 Aug 2026 00:00:00 +0000

Cyberspace is the rapidly growing network of computing and communication technologies that have profoundly altered our lives. We already carry out myriad social, economic, and political transactions through cyberspace, and, as the technology improves, so will their quality and quantity. But the very technology that enables these transactions also makes detailed, cumulative, invisible observation of our selves possible. The potential for wide-ranging surveillance of all our cyber-activities presents a serious threat to information privacy. To help readers grasp the nature of this threat, Professor Jerry Kang starts with a general primer on cyberspace privacy. He provides a clarifying structure of philosophical and technological terms, descriptions, and concepts that will help analyze any problem at the nexus of privacy and computing-communication technologies. In the second half of the article, he focuses sharply on the specific problem of personal data generated in cyberspace...

Externalizing Trademark's Limits

Tue, 25 Aug 2026 00:00:00 +0000

Courts and scholars alike conventionally describe trademark rights as inherently limited. By “inherently limited,” they mean that the boundaries of trademark rights can be derived from the justifications for those rights, without resort to other competing values. That description is important to both trademark maximalists and minimalists. For the former, appeals to the inherent limits are meant to downplay concerns about broad rights; for the latter, they are meant to reinvigorate the limits.The claim that trademark rights are inherently limited is undeniably correct in important ways. Nothing is more foundational to trademark law than the notion that trademark rights are not rights in gross—the rights arise out of use in connection with particular goods or services, and they exist only in relation to those goods or services. For that reason, eligibility for trademark protection depends on a claimed mark’s relationship to the goods and services. We determine whether one has a...

Amazon's Quiet Overhaul of the Trademark System

Tue, 25 Aug 2026 00:00:00 +0000

Amazon’s dominance as a platform is widely documented. But one aspect of that dominance has not received sufficient attention—the Amazon Brand Registry’s sweeping influence on firm behavior, particularly in relation to the formal trademark system. Amazon’s Brand Registry serves as a shadow trademark system that dramatically affects businesses’ incentives to seek legal registration of their marks. The result has been a surge in the number of applications to register, which has swamped the U.S. Patent and Trademark Office (PTO) and created delays for all applicants, even those that previously would have registered their marks. And the increased value of federal registration has drawn in bad actors who fraudulently register marks that are in use by others on the Amazon platform and use those registrations to extort the true owners.Amazon’s policies also create incentives for businesses to adopt different kinds of marks. Specifically, businesses are more likely to claim descriptive...

Registration and Federalization: 75 Years of the Lanham Act

Tue, 25 Aug 2026 00:00:00 +0000

This contribution to the Cardozo Arts & Entertainment Law Journal's symposium celebrating 75 years of the Lanham Act evaluates the statute in light of two of the drafters' most significant goals: improving the quality of notice provided by the federal register and maintaining the substantive uniformity of trademark and unfair competition law.In our view, the statute has only been a partial success in terms of notice. Federal law has come to dominate the field, but not primarily because registration became more significant, as the drafters expected. Instead, federal law displaced common law trademark and unfair competition law because courts interpreted the Lanham Act to provide a federal cause of action for infringement of unregistered marks. That interpretation assured continued substantive uniformity, but it undermined the statute’s incentives to register and therefore probably came at the expense of better notice.

Watching the Watchers: Enemy Combatants in the Internment's Shadow

Tue, 25 Aug 2026 00:00:00 +0000

In Denying Prejudice: Internment, Redress, and Denial (2004), I tried to further a careful remembering of the internment as precedent and parable by holding the judiciary to account. The accounting was for what it did not only in the 1940s internment cases decided by the Supreme Court, but also the less well-known 1980s coram nobis cases decided in the Ninth Circuit. My objective was to unmask the sophistic ways that the judiciary avoided accountability for the racist civil rights disaster. Using techniques often praised as minimalist, the judiciary in the 1940s avoided accountability on the part of the President and the Congress. With a straight face, the Court held that the internment camps were never authorized by the political branches; rather, they were an ultra vires frolic committed by a civilian agency called the War Relocation Authority.

I also showed how, in the 1980s, again using minimalist tactics, the Ninth Circuit Court of Appeals quietly whitewashed history...

Cyber-Race

Tue, 25 Aug 2026 00:00:00 +0000

To date, most inquiries into race and cyberspace have focused on the "digital divide" - whether racial minorities have access to advanced computing-communication technologies. This paper asks a more fundamental question: Can cyberspace change the way that race functions in American society? Professor Jerry Kang starts his analysis with a social-cognitive account of American racial mechanics that centers the role of racial schemas. These schemas consist of racial categories, rules of racial mapping that place individuals into these categories, and racial meanings associated with each category. He argues that cyberspace can disrupt racial schemas because it alters the architecture of both identity presentation (enabling racial anonymity and pseudonymity) and social interaction (enabling increased interracial interactions). Thus, cyberspace presents society with three design options: abolition, which challenges racial mapping by promoting racial anonymity; integration, which reforms...

Race.Net Neutrality

Tue, 25 Aug 2026 00:00:00 +0000

The "net neutrality" debate is undergoing a theoretical transition. Since the late 1990s, we have moved from "open access," to "end to end," to "net neutrality," and by 2007, the question seems to have transformed into "anti-discrimination." To the extent that net discrimination frames the question, our history and experience with race discrimination should be cognitively salient. Although patently different subjects, these two forms of discrimination share some similarities which have been noted by various commentators but never systematically explored. This Essay begins that study, with the goal of gleaning lessons for telecommunications policy.

A comparison and contrast between race discrimination and net discrimination teaches us, first, to particularize the discrimination at issue, and to be wary of what I call normative carve-outs in defining discrimination. Second, the comparison sensitizes us to the clash between welfarist and deontological concerns that have...

Urban Sensing: Out of the Woods

Tue, 25 Aug 2026 00:00:00 +0000

A fundamental shift is underway in pervasive computing. Within academic research, pervasive computing in the form of embedded networked sensing has leapt from the laboratory to the natural environment. Simultaneously, in the domain of personal communication and corporate marketing, pervasive computing has entered the backpack, purse, and coat pocket in the form of mobile phones, laying the groundwork for Mark Weiser's vision of ubiquitous computing. We characterize this contextual shift as urban sensing, which augurs a fundamental transition from science and engineering into the realms of politics, aesthetics, interpretation, and motivation. More than a change in degree, this is a change in kind that warrants careful, transdisciplinary study. In this paper, three authors representing the fields of architecture and urban planning, statistics and visual arts, and the law explore how urban sensing can help produce a data commons with public sphere benefits. But the construction of...

Brief of Trademark Scholars As Amici Curiae in Support of Neither Party

Tue, 25 Aug 2026 00:00:00 +0000

Amici take no position on whether BOOKING.COM is generic, but write to encourage the Court to be cautious in resolving this case, which involves a generic term combined with a common top-level domain name identifier (.com). Trademark applications raise almost infinitely varied scenarios, including generic terms combined with other elements, and the top-level domain name identifier has some specific features that make it analogous to functional matter. Whatever rule the Court adopts should be highly attentive to the risks to competition of overassertion of registered marks that are largely or entirely comprised of generic elements.

Because courts deciding infringement cases are often unfamiliar with the context of a trademark registration, they may miss limitations on the scope of the registered mark that the Trademark Office believed existed and, as a result, enforce broader rights than the registrants should actually have. Ordinary businesses receiving cease and desist...

What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants