Quarterly Journal 50-1
In This Section
The AIPLA Quarterly Journal, a publication of the American Intellectual Property Law Association, is housed at the George Washington University Law School and is edited and managed by an Editorial Board of intellectual property experts and a staff of law students under the direction of the Editor-in-Chief, Professor Joan Schaffner.
The Quarterly Journal is dedicated to presenting materials relating to intellectual property matters and is published four times per year. Editorial Board members (all of whom are lawyers) are selected based upon demonstrated interest and experience, and student staff members are selected from the students of the GWU Law School.
This year marks the 50th Anniversary of the Quarterly Journal. Watch for the special anniversary edition later this year. Many thanks to our 50th Anniversary advertiser CAS!
Richard S. Taffet and Michael Zymler
THE UGLY SIDE OF BEAUTY: OUTDATED REGULATIONS CONTROLLING THE GROWING AND EVOLVING E-COMMERCE COUNTERFEIT COSMETICS MARKET
Trademark owners and law enforcement have been working to combat the counterfeit
trade for years with little success. Recently, the cosmetics industry has been disproportionately
targeted by counterfeiters due to social media popularization of products through content posted
by beauty influencers. Moreover, the popularity of e-commerce has been further exacerbated by
the COVID-19 pandemic, which continues to motivate consumers to seek out alternatives to
traditional in-person shopping. Counterfeiters have been able to adapt their behavior to best
capitalize on these changes in consumerism and United States consumers and businesses are the
ones suffering. Specifically, counterfeit cosmetics products are detrimental to the profitability
and integrity of United States brands and pose a serious threat to the health and safety of consumers.
Two factors that have allowed counterfeiters to thrive despite these changes are their
ability to maintain anonymity on the internet and the lack of federal legislation specifically
regulating the e-commerce marketplace platforms that United States consumers have come to
heavily rely on. Existing legislation is also ill-equipped to handle these changes in consumerism
and strides in technology—especially given the increased sophistication of the counterfeit
trade—because the laws are shockingly outdated.
Accordingly, this Note calls for stringent e-commerce focused intellectual property
regulation to combat the current counterfeit trade and deter its efficacy in the future. Using
Amazon as a case study—though other e-commerce platforms, such as eBay and Alibaba, are
also riddled with counterfeit products—this Note examines the current e-commerce marketplace
environment. This Note ultimately concludes that the SHOP SAFE Act lays a solid foundation to
combat the sale of counterfeit cosmetics via the internet and, with a few proposed amendments,
will be able to effectively protect United States consumers and trademark owners.
SAFE HARBOR FOR REVERSE PAYMENT AGREEMENTS: ADOPTING REGULATIONS TO HELP PARTIES SETTLE WITHOUT ANTITRUST CONCERNS
The Hatch-Waxman Act has enabled low-cost generic drugs to enter the market and benefit patients. Meanwhile, it also benefits brand name drug companies by adjusting their patent terms. The reverse-payment made after the paragraph IV challenge under the Hatch-Waxman Act, however, has attracted great antitrust concerns. This Note will review the antitrust problems of reverse-payment and analyze the solutions previously proposed, then propose new solutions to address the antitrust concerns in the reverse payment agreement.
HOW TO GET RICH WITHOUT EVEN TRYING: THE MUSIC MODERNIZATION ACT GIVES MUSIC PUBLISHERS AN ADVANTAGE TO UNFAIRLY PROFIT FROM THE WORK OF INDEPENDENT SONGWRITERS
The Music Modernization Act of 2018 authorized the Register of Copyrights to create the Mechanical Licensing Collective (MLC). The MLC collects blanket mechanical licenses from Digital Service Providers, like Spotify, and distributes the royalties to the appropriate copyright owners. As part of their distribution efforts, the MLC maintains a public database of musical works and matches each with those appropriate copyright owners. However, if royalties remain unmatched or unclaimed they are distributed to members of the MLC according to market share.
Music publishers, as opposed to songwriters, disproportionately benefit from the current scheme in three ways. First, music publishers hold a supermajority on the MLC’s Board of Directors.Second, music publishers make up the greatest proportion of the market share. Third, the audit procedures lack efficient accountability measures. Thus, independent songwriters stand to remain unfairly compensated for their works.
This Note proposes that 17 U.S.C. § 115(d)(3)(D)(i) should be amended to evenly split power on the Board between songwriters and music publishers. Additionally, 17 U.S.C. § 115(d)(3)(J)(i) should be amended to reallocate 50% of unmatched and unclaimed royalties to be distributed in the form of grants to causes that incentivize creation. Lastly, 17 U.S.C. § 115(d)(3)(D)(ix)(II) should be amended to authorize the U.S. Copyright Office to have final approval over the chosen auditor for the MLC. This legislation is necessary to balance the power of songwriters with that of music publishers within the MLC to ensure accountability and fair compensation.
AIPLA CLE Webinar: Damages 2023 Year-in-Review: Lessons and Litigation Strategies
March 12, 2024 2:00 PM to 3:30 PM | Up to 90 Mins CLEThis year’s panel of experts will leverage decades of deep litigation experience in patent- and other IP-related matters to provide webinar attendees with additional insight on recent cases from the perspectives of private practice litigators and testifying experts. In a conversational format, our panel will address issues of high importance from 2023’s most interesting IP damages cases. Among other topics, our panel will discuss recent developments in admissibility, apportionment, reliance on technical expert opinions, post-trial royalties, trade secret damages, and copyright statutory damages.
2024 Trade Secret Summit
March 14 to 15, 2024Registration is now Open! Please join the AIPLA Trade Secret Committee for the 2024 Trade Secret Summit, which is being held March 14-15, 2024 in Santa Clara, California. The AIPLA Trade Secret Summit is the leading trade secret conference in the nation, with speakers from across the spectrum of private practitioners, in-house counsel, government, and academia, as well as fantastic networking opportunities. Registration is now open!
2024 Advanced Chemical Patent Practice Institute
May 14 to 15, 2024This advanced course offers how the chemical/pharma patent practitioners can use fundamentally sound but oft overlooked principles to prepare and prosecute a United States chemical/pharma patent application to withstand both PTAB and district court challenges. The principles taught will greatly help those advanced chemical/pharma patent practitioners involved with prelitigation, portfolio management, litigation, Orange Book listings, Purple Book/BCPIA, regulatory practice, due diligence, health checks, and analysis of third-party patents for validity/patentability, infringement, and enforceability issues, as well as for preparing IPR and/or PGR petitions and defending the patent against them.
AIPLA 2024 Spring Meeting
May 16 to 18, 2024Join us as we bring IP professionals together to learn and connect. More information coming soon! The 2024 Spring meeting will take place in downtown Austin, at the Hilton Austin. Leadership Meetings on Wednesday, May 15. Programming scheduled May 16-18.
AIPLA 2024 Annual Meeting
October 24 to 26, 2024Join us as we bring IP professionals together to learn and connect. More information coming soon! The 2024 Annual meeting will take place at the Gaylord National Harbor Resort. Leadership Meetings on Wednesday, October 23. Programming scheduled October 24-26.