Wag the Dog: Using Incidental Intellectual Property Rights to Block Parallel Imports
Bibliographic record
Abstract
Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to reinstate it. In the meantime, trademark owners could resort to design patents to achieve their goals. Trademark owners have employed the same copyright strategy abroad, in countries with similar asymmetries in their intellectual property regimes. In Canada and South Africa, courts have considered but ultimately rejected judicial remedies that would restrict the use of copyright law to override trademark law. Australia and Singapore have addressed the problem through parallel import legislation which disregards the copyrighted material embodied in mere "accessories" to imported goods. This legislation has already given rise to questions of interpretation. If Congress chooses to restore parallel import restrictions on copyrighted works, enabling trademark owners once again to use copyright law as a mutant form of trademark law, existing doctrines such as copyright and patent misuse, de minimis use, and fair use will not offer the clarity and predictability necessary for a long-term solution. Instead, a legislative response is needed. Drawing on lessons from other jurisdictions, the Author proposes amendments to the federal copyright and design patent laws which will enable the legal status of most parallel imports to be assessed despite the presence of incidental material protected by copyrights or design patents. This approach will restore the preeminence of trademark law as the proper mechanism for balancing the legitimate interests of trademark owners and consumers
Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.
How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.009 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.001 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.003 | 0.010 |
| Scholarly communication | 0.005 | 0.009 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.004 | 0.004 |
| Insufficient payload (model declined to judge) | 0.009 | 0.002 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".