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Volume 11 | Number 2

You may download and read the Full Edition, or click on a citation below for the individual articles. Journal content dating from 2005 is available on the Lexis-Nexis database. Content dating from 2006 is available on the HeinOnline database. Journal content, starting with Volume 8, is now available on the Westlaw database. (subscriptions required).

INTELLECTUAL PROPERTY: FUELING THE HEALTH CARE REFORM ENGINE
Frederick R. Zufelt & T. Robert Rehm, Jr.
11 Wake Forest J. Bus. & Intell. Prop. L. 147

Among its many notable accomplishments, the 111th United States Congress likely will be remembered most for its groundbreaking, albeit controversial, passage of comprehensive health care reform legislation in the form of the Patient Protection and Affordable Care Act (the “Affordable Care Act”). Signed into law on March 23, 2010, the Affordable Care Act aims to expand health care coverage for the nearly 50.7 million Americans who are currently without health insurance. While the Affordable Care Act may be viewed as the defining moment in the decades-long health care reform movement, significant health care reform in the United States was already underway more than a year earlier. On February 17, 2009, President Barack Obama signed into law the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”). Included within the Recovery Act are provisions known as the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), which appropriates billions of dollars in incentives for the adoption and implementation of electronic health record (“EHR”) technology.

This Article, which explores the ways in which the protections and motivations inherent in United States intellectual property laws, combined with the various incentives offered by the HITECH Act, serve (and will continue to serve) as a driving impetus for the development of an expanded market for HIT, (i) provides in Section I an overview of the legislative and regulatory history of the HITECH Act; (ii) discusses in Section II some of the fundamental principles for securing, maintaining, and protecting intellectual property rights in the United States; (iii) addresses in Section III the impact of the HITECH Act on the HIT market, including the role of intellectual property protections in the development of EHR products; and (iv) analyzes in Section IV several of the legal issues that health care providers face while implementing EHR systems, particularly those arising in negotiating an EHR software license agreement.

NEW AGE ATHLETES AS SOCIAL ENTREPRENEURS: PROPOSING A PHILANTHROPIC PARADIGM SHIFT AND CREATIVE USE OF LIMITED LIABILITY COMPANY JOINT VENTURES
Roger M. Groves
11 Wake Forest J. Bus. & Intell. Prop. L. 213

While professional athletes in this country’s four most popular professional leagues have significant player salaries, this article focuses on the National Basketball Association (“NBA”). The NBA players are Exhibit A for an unrealized opportunity. They comprise a group of the world’s most talented employees for this particular industry who, by virtue of both wealth and cultural connectivity, have an extraordinary “giving back” impact on urban America. If the vast majority of those players would establish charitable foundations and pool their funds, they could do something unprecedented— they could have transformative effects on entire communities. Such like-minded players can be termed “New Age Athletes.”

COMMENT: GREEN WARFARE: AN AMERICAN GRAND STRATEGY FOR THE 21ST CENTURY
Colin S. Crawford
11 Wake Forest J. Bus. & Intell. Prop. L. 243

The United States is in desperate need of more farsighted leadership. This country is in the midst of an identity crisis, having struggled to define itself since the end of the Cold War. As the world’s lone superpower, the United States has learned the hard way that along with its strong standing comes immense responsibility in terms of leading efforts to eliminate climate change, nonproliferation, and global poverty. Recent developments in international affairs, sustained economic woes, and partisan gridlock have divided the nation’s attention and resources. Lawmakers are currently playing whack-a-mole with America’s priorities, lacking both the vision and direction needed to combat the long-term challenges that await. However, all is not lost. Despite increasing (and oftentimes overblown) fears of “American decline,” the United States remains the world’s top dog in terms of economic and military power. What these fears reflect, however, is the very real sentiment that the United States can no longer sustain itself as the head of a purely unipolar world. Economies in emerging markets such as China, India, and Brazil have shaken off their lethargy and are growing in a manner which suggests a global realignment of wealth is beginning to take place, shifting from West to East and from North to South. Because this new wealth begets power, it is clear that the United States will face increasing competition in the coming decades.

In short, this Comment advocates an Apollo Program-type mentality in terms of “greening” American society from the top down—beginning with the military—in order to break the country’s addiction to fossil fuels. In embracing a broad-based “green” strategy, the United States can weave together a number of priorities heretofore thought irreconcilable: national security, environmental protection, and economic growth. In defining a clear “enemy” – our dependence on fossil fuels—the U.S. can unite various segments of society around a value-neutral and universally beneficial policy objective. By calling upon the resources of academia, the military, and the business community, the government can harness the institutions in which America has traditionally had the most palpable innovative advantages. By becoming the international leader in green technology invention, production, and deployment, the United States can help ameliorate the effects of its last industrial revolution while triggering a new one in the process.

COMMENT: SHOULD FURNITURE BECOME FASHION-FORWARD? APPLYING FASHION’S COPYRIGHT PROPOSALS TO THE FURNITURE INDUSTRY
Kimberly Allen Richards
11 Wake Forest J. Bus. & Intell. Prop. L. 269

Copycat furniture companies, which produce custom furniture “knockoffs” based on the designs of other furniture companies, are seeing growing success in the United States due to the lack of intellectual property protection for useful articles like furniture. In an industry already battered by offshore manufacturing and the depressed economy, the prevalence of copycat products further affects the sales of producers of original furniture designs. In order to preserve the incentive in the furniture industry to invest in creating original designs and protect against copycats, reform is needed.

As a functional article, furniture is rarely protected by intellectual property laws. Current copyright law only protects useful articles to the extent that the article’s ornamental aspects are separable from the article’s functional aspects. The various tests for conceptual separability are ambiguous and results are difficult to predict. Design patents similarly only protect new and ornamental designs where the ornamental aspect is not primarily dictated by function. The significant backlog in the Patent and Trademark Office is also a deterrent to applying for this form of protection. Trademarks and trade dress also rarely protect furniture because only a handful of designs serve as source identifiers for furniture manufacturers.

The fashion industry’s proposals for copyright reform may be the answer to the furniture industry’s woes. Fashion designers share furniture designers’ frustrations with current intellectual property law and have pushed for a number of reforms over the past decade to protect new and original fashion designs. The most recent bill, The Innovative Design Protection and Piracy Prevention Act, would have amended the Copyright Act to specifically protect the appearance of an article of apparel as well as its ornamentation for a three-year period. While opponents of the bill cited the strength of the fashion industry in spite of copycats, the same argument does not hold in the struggling furniture industry.

Recent proposals from the fashion industry could be adapted to the furniture industry to help close the industry’s gap in intellectual property protection and preserve the incentive for the furniture industry to invest in creating original designs. In order to revitalize the furniture industry and protect its original and innovative designs, the furniture industry should push for their own reforms and become fashion-forward.

COMMENT: WHO’S AFRAID OF THE BIG, FRIENDLY NONPROFIT? SABER RATTLING AND THE SAD STATE OF AFFAIRS FOR SMALL CHARITABLE NONPROFITS AND TRADEMARK LAW
Christopher T. Ward
11 Wake Forest J. Bus. & Intell. Prop. L. 295

When charitable nonprofits are forced into trademark fights, they are at risk of no longer being able to help their respective causes. Raising awareness of a condition many laypeople have not heard of is a noble goal with a steep uphill climb. Using and registering a mark to prevent others from diluting the organization’s message are appropriate measures and common practice among nonprofit organizations. This Comment explores the reality facing many small nonprofits: they are one cease-and-desist letter or lawsuit away from no longer being able to help people. Many organizations settle in the face of impossible legal fees, and as a result there is almost no case law analysis where larger organizations sue small nonprofits. Many entities, including corporations and large nonprofits, protect their marks fiercely and can crush smaller organizations by merely threatening the word “enjoin.” What could a small nonprofit organization do if it had to face a larger organization with a war chest specifically reserved for trademark litigation? What if a small nonprofit had lawyers who would not file defective pleadings and hamstring its motion to dismiss?

COMMENT: LOCATION? LOCATION? LOCATION?: A NEW SOLUTION TO CONCURRENT VIRTUAL TRADEMARK USE
Adam V. Burks & Dirk D. Lasater
11 Wake Forest J. Bus. & Intell. Prop. L. 329

Small or startup businesses have every incentive to put their products or services online. Furthermore, these businesses, in an effort to teach potential customers to recognize their goods or services, will almost invariably and prominently display their mark to put a name or design in customers’ minds that identifies the goods or services offered. While every business presumably understands the necessity of having a “brand,” some owners will begin using their mark on the Internet without registering it with the USPTO because they are ignorant of the ramifications of failing to register or because they lack the desire or resources to go through the application process. For those entrepreneurs that own small Internet companies, intellectual property rights are not likely foremost in their minds. Thus, one pressing question remains: does the Lanham Act, through its various Internet-related updates, accommodate a situation where a common law senior user has exploited the Internet to use his mark in commerce, and if so, have courts been able to craft a remedy when a junior good-faith user registers a substantially similar mark with the USPTO? Are the Lanham Act and the traditional foundations of trademark law still relevant since the great Internet migration began over twenty years ago?

This Comment argues that current trademark law in the United States is, at the least, inadequate and, at the most, inapposite to effectively and uniformly establish the divisions in possession of trademark rights between an Internet common law senior user and an Internet junior user that has registered the mark on the principal register. Part I discusses the Concurrent Use Doctrine as it existed both before and after the enactment of the Lanham Act in 1946 in order to set the legal context for concurrent Internet use problems. Part II explores the problems unique to concurrent trademark use on the Internet. Part III considers the scholarly works that have attempted to confront these issues with concurrent Internet trademark use. Finally, Part IV argues that the old geographic- and consumer-oriented trademark rationales cannot be imported to the Internet context because of online mark holders’ world-wide and instantaneous reach. Part IV goes on to suggest that this systemic problem can likely be remedied by enacting one or more reforms to address the reality of trademarks in the twenty-first century.