Christian Louboutin’s Colorful Trademark

by Tony Guo

In fashion trademarks can be the difference between a twenty dollar pair of shoes and a twenty-hundred dollar pair.  In January 2012 Mr. Louboutin’s went to court to prevent Yves Saint Laurent from marketing shoes that had red soles.  This was not Mr. Louboutin’s first visit to court over the issue.  Last August he was unsuccessful in convincing federal Judge Victor Marrero that red soles can be trademarked.  Judge Marrero cited the freedom to use different colors as vital for the health of the fashion industry and ruled against Mr. Louboutin.

Mr. Louboutin’s recent argument is that the trademark only protects a particular color in a particular place on a particular item.  His argument was met with skepticism from the panel and his lawyer was asked rhetorically whether he thought a color could be trademarked.  Mr. Louboutin’s argument is more subtle than a question about whether a color can be trademarked.  The court overlooked his argument that the color red used in a certain context can serve a trademark.  His trademark for red soles is not much different from Tiffany’s robin blue, Burberry’s plaid, or Louis Vuitton’s brown and gold.

I agree with the panel that fashion is delicate and that colors are vital to the industry.  However Mr. Louboutin’s red soles have become well known in the industry and border line iconic.  Allowing other designers to benefit from Mr. Louboutin’s ground work would defeat the purpose of trademark.  As a society we want to reward individuals like Mr. Louboutin for developing the trademark.  Mr. Louboutin made red soles famous.  The color red had little to do with the success of Mr. Louboutin’s shoes, but the shoes had a lot to do with the success of red soles.  That is why Mr. Louboutin deserves a trademark.

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The First Amendment Power of Online Protest: The SOPA and PIPA Example

by Tony Guo

The battle over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) was determined by an unlikely source, online users. Although it is hard to quantify the impact the online protest had, it is certain that without it far fewer people would know what SOPA and PIPA is about.  Goggle, Wikipedia, Craigslist, and numerous online websites made SOPA and PIPA part of the news and part of the discussion.

As citizens voiced their displeasure about the laws, lawmakers quickly abandoned the two bills.  The vote on PIPA was delayed in the Senate while Lamar Smith the lead SOPA sponsor killed SOPA in the House.

Internet users stopped raiding and pillaging on World of Warcraft, raising animals on Farmville, and logged out of facebook to impact the congressional process.  And they were successful.  They made their opinions known by signing petitions, writing to their senators and representatives, and most importantly discussing the issue with friends and family.  The idea of citizen participation in the legislative process was revived over-night as many took to Twitter, Youtube, and blog websites to discuss privacy and piracy issues.

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What Type of Forum is Zuccotti Park?

by Tony Guo

Zuccotti Park is a privately owned public space.  The twenty-six thousand square foot park is the hub of the Occupy Wall Street protests.  The park is not the only privately owned public space in New York City.  In the 1960s developers traded public space for zoning concessions.  There are over 520 parks, plazas, and arcades in New York City similar to Zuccotti Park.  The government imposed two restrictions on owners of these public spaces.  The space must be open twenty-four hours a day and any restrictions on the park must be reasonable.  Protestors’ First Amendment rights to sleep and occupy the park may depend on how it is defined by courts.

Zuccotti Park does not fit into the Supreme Court’s forum analysis.  The park is not a traditional public forum, a limited public forum, or a non-traditional public forum because the city does not own the park.  If the city owned Zuccotti Park it could enforce the curfew restriction that applies to all the city’s parks.  The private nature of the park saves it from city regulation while its public nature deters its owners from regulating it.

In a letter sent to Commissioner Kelley of the New York City Police Department Zuccotti Park’s owners were “extremely concerned about dangers posed by damage that may have been incurred within the Park and by materials and equipment brought into the Park by the protestors.”  The owners “received hundreds of phone calls and e-mails from concerned citizens and office workers in the neighborhood.”  The letter ended by requesting assistance from the police department in ensuring public safety.  Whether for political, personal, or other reasons the owners and police did not “perform the necessary cleaning, inspection, damage assessment and repairs.”  Instead they allowed the protestors to continue to occupy the park.

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The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

by Tony Guo

Introduction

Over Fall Break I visited my fiancée in New York City.  As part of my visit we went to Washington Square Park.  We both graduated from New York University and Washington Square Park is a second home to us.  It was the first place I met my fiancée.  Before I graduated the park had undergone renovations forcing the two previous classes and my class to break tradition and graduate in Yankee stadium instead Washington Square Park.  I was curious to see the recent renovations and excited to visit my favorite park.  When we got near the park we saw rows of police vehicles.  We had stumbled upon an Occupy Wall Street protest.

My fiancée and I made our way to the barricaded fountain and in the process received several copies of the same Occupy Wall Street newspaper.  As we left the park to go to the vendor fair nearby I heard a protestor arguing with a resident.  The protestor held a copy of the Constitution and a copy of the Occupy Wall Street newspaper.  The protestor gave the newspaper to the resident who immediately threw it in the trash can.  As the resident moved away, the protestor shouted “you are suppressing my First Amendment right to be heard.”  The protestor having not taken William and Mary Professor Timothy Zick’s First Amendment class was unaware that the First Amendment only prohibits state actors such as a police officer from limiting his right to free speech and not private persons.  The protestors should have said please recycle.

Background

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Mississippi’s Vote on “Personhood”

by Emily Brown

On November 8, Mississippians will vote on a constitutional amendment that would extend the definition of the legal person to include a fertilized human egg. Proposition 26, the proposed amendment, could pose a hazardous threat to reproductive rights in the state while also violating the Fourteenth Amendment. The amendment would create a dangerous invasion of criminal law into healthcare by prohibiting all abortions even those resulting from rape or incest. Proposition 26 would even ban some forms of birth control such as, IUDs and the morning-after pills.

Beyond prohibiting a constitutional right stemming from the fourteenth amendment, Proposition 26 will likely have major legal ramifications for women and healthcare providers. The amendment could possibly give the state the power to charge a woman taking the “morning-after” pill with murder. The statute obviously has far reaching abilities that would violate the constitutional right established by Roev. Wade and also cripple reproductive healthcare in Mississippi.

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The Leahy-Smith America Invent Act: Possible Constitutional Friction

By Tony Guo

Intellectual property affects our daily lives: literature, music, technology, and even what we eat depend on inventor’s rights.  What is less well known is that the government’s power to grant intellectual property rights stems directly from the Constitution.   The Copyrights and Patents clause is found in the U.S. Constitution Article I.   Further, Article I describes the scope of the government’s power, what inventions are patentable, how patents are issued, the nature and scope of the rights granted by Congress, the  power Congress has over patent rights, how state power affects patents and copyrights and the application of trademarks.  The importance of protecting inventors was not lost on the founding fathers.  Inventors were rewarded with a pseudo-monopoly on the invention in exchange for their initial investment and disclosure of how the invention worked.  The patent system has undergone several changes since its incorporation.  The biggest change is on the horizon, The Leahy-Smith America Invents Act.

The Leahy-Smith American Invents Act changes the U.S. from a first inventor to invent system to a first inventor to file system.   The rationale behind this change is that the patent system will become more transparent about its standards and more objective in determining what is patentable.  It is also believed that a first inventor to file system is more predictable and simpler to use.  Its constitutional affect may be very large.  A patent grants the right to the owner to exclude others from using an invention.  In a world where innovation is essential for growth a first inventor to file system may hinder personal freedom not only to invent but also to use.

There is an 18 month transition period to the first to file system.  This means the first inventor file system begins March 16, 2013.  Patent applications are subject to the first inventor to file system if an application at any time contains a claim with an effective filing date on or after March 16, 2013 or contains a claim for benefit of any application that at any time contained such a claim.

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The Time for Alternatives

 By Alexaundra Fitzgerald

The aims of punishment are incapacitation, rehabilitation, deterrence, and retribution. Today the focus of the criminal justice system is incapacitation. Incapacitation is pursued through the incarceration of offenders in private and public prisons. The prison system is very costly, and it becomes more of a financial burden on state and federal governments every year.

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 In 2009, the Pew Center on the States issued a report revealing the staggering statistics on incarceration rates and the cost of prison. One out of every thirty-one adults is in contact with the correctional system. The Pew Center found that nine percent of African American adults, four percent of Hispanic adults, and two percent of Caucasian adults, are under the control of the criminal justice system. All prisoners, regardless of race, have two things in common. They tend to be less educated and more impoverished than the general population.

 Annually, States spend over four-hundred millions dollars incarcerating offenders. The Pew Center’s suggested solution to this financial disaster is to change sentencing laws and probation programs in order to use prison dollars to implement preventative programs. Every politician fears being labeled as soft on crime, so it is unclear how many law makers will support funding preventative programs over incarceration. 

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Implementing the Rights Everyone Has

By Edward Eichler

An impoverished young Cambodian boy attempts to steal a bicycle. He is arrested, tortured by the police, and ends up in prison. Under the law, he has certain rights, including the right to a defender. But in actuality, this boy has no lawyer to advise him and no way to know of his what his rights are.

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In 2005, Kofi Annan noted that “the era of declaration is now giving way, as it should, to an era of implementation.” Towards the end of the 20th century, many countries, including Cambodia, passed laws giving their citizens basic rights, such as the right to be free from torture and to have a public defender. It is now the norm to ratify international instruments such as the International Covenant on Civil and Political Rights; indeed only 29 states have not ratified the ICCPR to date. The covenant prohibits torture under any circumstances. Cambodia is a party to this treaty.

But having ratified a treaty with a prohibition against torture is utterly meaningless if the implementation of such a principle is lacking—in fact, it may make matters worse, because being a party to such a treaty can give a state that does torture its citizens a veneer of respectability, legitimacy and even prestige. Thus, while the movement towards a widespread recognition of human rights is surely a positive sign, it is only the first step. Actually carrying out the reforms necessary to implement such rights is crucial. But doing so is a long and difficult process.

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Cellphones and Driving: Problems and Solutions.

By Kristen R. Brown

I think it’s pretty safe to say that if you own a cellphone and drive a car on a regular basis, you have probably talked on the phone while driving. In fact, I would venture that if you are under age 25, it’s also pretty safe to say that you have also composed and sent text messages while driving. I know that I have personally mastered the challenging art of driving a manual transmission and talking on the phone at the same time. One of my friends is even more creative than I am: she has apparently become quite talented at using her elbows in an effort to guide the steering wheel in her manual Subaru. Texting…well, that is where I draw the line. Managing the steering wheel, forming coherent statements using the tiny buttons, and paying attention to the road are a bit much for my personal taste, but I feel like I may be in the minority among my friends.

texting while driving

Despite what seems like a common practice by most people of my acquaintance, talking and/or texting while driving is actually against the law in many jurisdictions. In some states, like Washington, talking on a hand-held device and texting are only secondary offenses – meaning you can only be fined if you are pulled over for some other offense. In other jurisdictions, like the District of Columbia, talking on a hand-held device and texting are primary offenses – meaning that you can be fined just for being caught doing one of those acts. (In Virginia, for those of you who were curious, only texting is an offense for most drivers, and it is a secondary offense at that.)

Last summer, a report from the National Highway Traffic Administration revealed that cell phone use by drivers caused around 955 fatalities and 240,000 accidents in 2002. Furthermore, the report revealed that hand-free sets don’t necessarily eliminate the risk, since it is the conversation itself – not holding the phone – that poses the danger. In fact, according to the report, “motorists talking on a phone are four times as likely to crash as other drivers, and are as likely to cause an accident as someone with a .08 blood alcohol content.”

However, the dangers posed by cell phones is far from settled. According to Katherine Mangu-Ward, a senior editor at Reason magazine, “the facts do suggest that the rise of the killer cellphone — and the corresponding need for government intervention — has been exaggerated.” In fact, a new Highway Loss Data Institute study reveals that in jurisdictions with hand-held phone bans, there have been no reductions in crashes. Furthermore, according to Anne McCartt of the Insurance Institute for Highway Safety, even if cell phones do pose a risk, it is difficult to enforce the laws such that people will actually be concerned about being penalized. According to Ms. McCartt, after New York imposed a ban, cell-phone usage decreased for the period immediately after the ban was imposed but this effect was short-lasting. Around one year after the law took effect, cell phone usage had bounced back.

In light of all these facts: what should the solution be to this issue? It is clear that despite the existence of cellphone and texting laws, people still talk on their cellphones and text while driving – even in jurisdictions where such actions are primary offenses. It is also clear that only allowing hands-free devices in an effort to mitigate the situation is not necessarily effective. But, if it is the conversation itself that poses the risk, why is a cell phone conversation any different than having a conversation with a  fellow passenger? Will that too need to be regulated to make the roads safer?

Like the policy-makers in this country, I don’t have a solution to this problem. But, I am interested in hearing others’ opinion on the matter. Assuming that cell phones do pose a danger to others on the road, what regulations, if any, should be imposed by local governments? Should the federal government get involved? Is any difference – however slight – better than none?

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Naming and Shaming: Pro Bono Becomes Political Ammo

By Ben Neumeyer

For the right-wing media, criticizing the Department of Justice under Eric Holder and its handling of the war on terror  has become a bit like the proverbial “spaghetti test”: throw what you can against the wall and see if it sticks.  The newest salvo has come from Keep America Safe, a political advocacy organization dedicated to defending Bush-era policies in the war on terror.  The organization, founded by Liz Cheney, Bill Kristol and Deborah Burlingame, the survivor of a 9/11 victim, released a video calling the patriotism of the Depart of Justice into question.  It’s dishonest, condescending, and wrong, but has to be see to be believed. (Available here)

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The video attempts to portray seven political appointees at the DOJ as jihadi sympathizers for fighting for due process for Guantanamo detainees pro bono while they were working at large law firms.  Even better, it suggests that Justice (or the “Department of Jihad”) is covering up their identities for unsavory reasons.   In the past few days, the video has become a minor right-wing news meme.

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