Masked marketing—one form of covert marketing—involves marketing communications that appear to be from independent third parties rather than from product marketers. This article presents a typology of masked marketing practices, illustrating whether they may be deceptive to consumers. To accomplish this, the authors apply the Federal Trade Commission's three-part definition of deception (i.e., misleadingness, reasonable consumer, and materiality) in the evaluation of such practices. The article concludes with policy recommendations including areas for further research.

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Covert Marketing Unmasked: A Legal and Regulatory Guide for Practices That Mask Marketing Messages

Abstract This article starts with a literary review of the conceptual frames through which esport has been labeled academically. It shows how the concept of “electronic” has been taken as the core term for labelingesport, often accompanied by a strong emphasis on “professionalism.” The literary review is followed by the submission of an alternative conceptual frame based on the economic notion of executive ownership, which provides a theoretical grounding for esport as a cultural phenomenon. In accordance with the above, the article concludes with a reframed look at the history of esport and suggests commercial analog gaming (especially Magic: The Gathering) as its point of origin.

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Reconsidering Esport: Economics and Executive Ownership

Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

Culture Warriors Go To Court: The Supreme Court and the Battle for the "Soul" of America

In brand imitation lawsuits, the primary focus is on demonstrating harm as it relates to brand confusion. The authors' premise is that such a narrow focus does not capture the complete impact of brand imitation. They offer a broader, theory-based perspective of harm by proposing that brand imitation affects both brand consideration and preference in the consumer choice process. The authors establish a formal nexus between brand consideration and the legal doctrine “initial interest confusion.” Using choice experiments and statistical modeling, they show that brand imitation harms the imitated brand even after controlling for brand confusion. Moreover, brand imitation harms not only the imitated brand but also other national brands in the category that are not being imitated. To quantify brand consideration and preference harm in financial terms, the authors propose two metrics: choice share shift and share-equalizing price cut. The results show that brand imitation harms the national brand more when the i...

Private Label Imitation of a National Brand: Implications for Consumer Choice and Law

Celebrities can sell anything from cars to clothing, and we are constantly fascinated by their influence over our lifestyle choices. This book makes an important contribution to legal scholarship about the laws governing the commercial appropriation of fame. Exploring the right of publicity in the US and the passing off action in the UK and Australia, David Tan demonstrates how an appreciation of the production, circulation and consumption of fame can be incorporated into a pragmatic framework to further the understanding of the laws protecting the commercial value of the celebrity personality. Using contemporary examples such as social media and appropriation art, Tan shows how present challenges for the law may be addressed using this cultural framework. This book will be of interest to intellectual property law academics, judges, practitioners and students in the US and common law jurisdictions, as well as those in the field of cultural studies.

The Commercial Appropriation of Fame : A Cultural Analysis of the Right of Publicity and Passing Off

The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (IP). Nevertheless, customs have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a powerful critique of the incorporation of customs in IP law and provides a theoretical framework for future analysis of private ordering regimes in IP. The article also provides additional support to those who have criticized the incorporation of custom in other fields.

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The Questionable Use of Custom in Intellectual Property

While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative advertisements and to otherwise limit information and choices available to consumers. Contemporary trademark law is at a crossroads and the initial interest confusion doctrine stands at the center of this intersection. This article uses the troublesome doctrine as a prism to analyze three crucial issues that will decide the future of trademark law: The first is whether it is ever acceptable to trade off of the goodwill established by another. The second is whether trademark protection primarily serves to protect consumers from being duped by unethical competitors, or instead primarily serves to bolster the business of individual trademark holders. Finally, the article considers the fundamental question: are trademarks and trademark infringement actions about protecting property rights or about providing more limited rights akin to tort and unfair competition actions? The answers to these questions lead to the conclusion that the initial interest confusion doctrine must be eliminated and trademark infringement returned to its origins as a narrow cause of action primarily directed at protecting consumers from deceptive business practices.

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Initial Interest Confusion: Standing at the Crossroads of Trademark Law

Private ordering is increasingly playing a role in determining the scope of intellectual property rights both as a de facto and a de jure matter. In this essay, I consider the best practices movement and its efforts to use private ordering to limit the scope and enforcement of copyright law. Best practices statements in the copyright context establish voluntary guidelines for what should be deemed fair uses of others’ copyrighted works. I identify some of the de facto successes of the best practices movement, but also raise a number of concerns about the project. As I have discussed elsewhere, the incorporation of industry practices and social norms into the law in the context of intellectual property can be problematic. The best practices statements have limited value for setting a standard for appropriate uses because they are very one-sided, having been developed without input from the content owners whose work is likely to be used. This one-sided approach to custom is misguided as a normative matter, but may also backfire because courts are more likely to incorporate the more restrictive and dominant practices that promote IP holders’ rights. Not only are the best practices statements’ call for incorporating unrepresentative customs problematic, but the statements can also be critiqued on other grounds. First, the statements are misleading about the parameters of fair use law – a fact which is particularly concerning given that the intended audience is not composed of legal professionals. Second, some of the statements propose overly constraining limitations on fair use that will limit what can be made both as a de facto and de jure matter. The essay concludes with some suggestions for ways that the best practices project could be redirected in positive ways that support law reform and the defense of reasonable fair use claims without risking the downsides of the current statements.

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Best Intentions: Reconsidering Best Practices Statements in the Context of Fair Use and Copyright Law

This article proposes a new test for determining what is a true threat - speech not protected by the First Amendment. Despite the importance of the true threats exception to the First Amendment, this is an underexplored area of constitutional law. Even though the Supreme Court has made clear that true threats are punishable, it has not clearly defined what speech constitutes a true threat. To make this determination circuit courts have adopted inconsistent and inadequate tests including a reasonable listener test. The Supreme Court has never granted certiorari to resolve the issue. The law surrounding threats has gained recent attention in two cases involving alleged threats conveyed over the internet: the Nuremberg Files case and the Jake Baker case. A Ninth Circuit decision (currently being considered for en banc review) recently reversed the district court decision in the Nuremberg Files case and its analysis highlights the circuit court confusion on what constitutes a true threat. This article discusses the failings of the current circuit tests, as well as the inadequacy of the alternatives suggested by scholars. This article proposes a new test which adds both an intent prong and an actor prong to the generally accepted reasonable listener test. An extensive test suite of cases demonstrates the efficacy of the proposed test. This article resolves the current confusion and presents a true threats test which provides greater protection for speakers while preserving the rights of potential victims.

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Freedom of Speech and True Threats

I. INTRODUCTION Consider the following scenarios: You are a physician at a local Planned Parenthood clinic. As part of your job you perform abortions. There have been protests outside the clinic and you have heard about the murders of several doctors around the country who were killed because they performed abortions. One day a colleague calls you and tells you that an anti-abortion group has put up a website which lists the names and home addresses of doctors who perform abortions. When you look at the website you find your name and address on the list along with strong language saying that you and the others on the list will one day be held accountable for your crimes against humanity. Some of the doctors' names have black lines through them. You recognize these names as people who have been murdered by antiabortion fanatics. Can you successfully sue the creators of the website for threatening you and causing you severe emotional distress, or is this website protected by the First Amendment? (1) Now imagine yourself a woman in college. You hear from a friend that a classmate has posted a story about you on the Internet with a newsgroup called "sex stories." You read the posting and find a gruesome and detailed story of the narrator torturing and raping you. The story culminates in a description of you being doused with kerosene and lit on fire. The posting uses your real name. You are scared and call the police. Should your classmate be convicted of threatening you? (2) You attend a rally in support of a boycott of white-owned stores whose owners will not hire African American employees. You are aware of several violent acts against blacks who have ignored the boycott including the firing of shots into the house of one boycott violator. The leader of the boycott speaks at the rally and warns boycott violators that "their necks will be broken." You had been considering returning to some of the white-owned stores but are frightened by the leader's words. Should the leader of the boycott be arrested for threatening boycott violators or is his speech protected by the First Amendment? (3) As a child you grew up watching the Lone Ranger on television. From this show you picked up the phrase "the silver bullets are coming" which signified to you that the Lone Ranger was on his way to save the day. Many years later, after an acrimonious divorce, you contact an FBI agent with newfound evidence that implicates your ex-father-in-law in an illegal bankruptcy scheme. On your voice-mail message to the FBI agent, rather than just saying you found new evidence, you use your favorite childhood phrase: "the silver bullets are coming!" Shortly after leaving this message, you are arrested for threatening a federal officer. Should you be convicted? (4) As the above situations show, there are many different contexts in which statements might be considered threatening. Many courts and scholars have focused only on one or two situations individually. The problem with not considering a broad spectrum of scenarios is that too often scholars and courts rely on gut judgments rather than on a clear and predictable test. The main purpose of this article is to create a test for determining when a statement is a "true threat" not deserving of First Amendment protection. The law surrounding threats has gained recent attention from commentators after decades of virtual anonymity and unaddressed confusion among the lower courts. The sudden interest in threats has been sparked primarily by the proliferation of widely disseminated Internet speech. (5) In particular, two high-profile cases have shined the spotlight on threats: the so-called Nuremberg File case (6) and the Jake Baker case, (7) both of which I used in the above hypotheticals. Despite this recent interest, the three major hornbooks and treatises on the First Amendment and the Constitution still do not have an index listing for true threats. …

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Jennifer E. Rothman

Papers

The Questionable Use of Custom in Intellectual Property

Initial Interest Confusion: Standing at the Crossroads of Trademark Law

Best Intentions: Reconsidering Best Practices Statements in the Context of Fair Use and Copyright Law

Freedom of Speech and True Threats

Freedom of Speech and True Threats