Tuesday, June 30, 2020


Today, the Supreme Court ruled (8-1) that merely adding ".com" to a generic term may allow the combination to be protected as a non-generic trademark. In other words, adding ".com" can confer meaning to the consuming public, and thus is not the same as adding "company" or "inc," which does not confer meaning. That was really the linguistic question in the case. Case law has long held that "Booking, Inc." is really "Booking." So, is "Booking.com" also "Booking"? Or is it "Booking.com"?

As a reminder, a mark is generic when it describes what the product is, and not who makes the product. So, Booking.com would refer to a single company (who) that makes bookings, and not to just any booking company (what). A generic term might be lawyer - it refers to what (legal services) and not to who (there are many lawyers). As the Court puts it, Travelocity is a booking company, but is it a booking.com company?

I signed on to an amicus brief supporting Booking.com, and I'll tell a story why (and why I so keenly followed this case). Way back in the beginning of the commercial internet, my firm registered the domain computerlaw.com. This was a big deal - making it work for email required complicated email gateways, etc. I hadn't even gone to law school yet, and I was in charge of setting it up. Connectivity looked a lot different for a small firm in 1994 than it does now.

Wednesday, June 24, 2020

How can health regulators maintain public trust when facing scientific uncertainty?

Health regulators such as the FDA and CDC always operate under uncertainty—evidence about health interventions inevitably comes with error bars. Under normal circumstances, regulators demand evidence that meets certain thresholds of validity and reliability before taking action, such as making a public health recommendation or approving a new drug. During a public health emergency like the COVID-19 pandemic, regulators are forced to act under higher-than-usual uncertainty: the social costs of waiting for better evidence often outweigh the costs of taking action before all the evidence is in. Regulators will thus make more mistakes than usual. And in addition to the direct costs of these mistakes, apparent flip-flopping on regulatory decisions risks undermining public trust in health agencies. In this post, we provide some examples of regulators reversing COVID-19-related decisions, describe the considerations these agencies are attempting to balance, and suggest ways for health regulators to maintain public trust while acting under high scientific uncertainty.

Thursday, June 18, 2020

How can the government improve access to COVID-19 preventatives and treatments for low-income Americans?

In the United States, one of the most important factors in receiving COVID-19 testing or treatment is access to insurance. But insurance—like other health innovations—is grossly and unevenly distributed. In particular, because of the way income and employment are distributed in the U.S.—and the country’s long-standing connection between income, employment, and insurance—Black Americans and other people of color remain vastly uninsured or underinsured, problems likely to be exacerbated by the COVID-19 pandemic. In this post, we look at how insurance policy—itself, a form of health innovation policy—has a racially disparate effect in the pandemic, with a particular focus on Medicaid.

Tuesday, June 16, 2020

USPTO v. Booking.com – A Linguistic Justification for ‘Generic Trademarks’

Guest post by Jake Linford, Loula Fuller and Dan Myers Professor, Florida State University College of Law, whose trademark law scholarship I have highlighted on Jotwell

I want to thank Lisa Ouellette for inviting me to blog about United States Patent & Trademark Office v. Booking.com, a trademark case argued before the Supreme Court in May, with a decision expected soon. The Court selected that case for its first live telephonic oral argument. The night of the historic oral argument, Christine Farley of American University Washington College of Law hosted a discussion where I joined Rebecca Tushnet, Marty Schwimmer, and Cara Gagliano to recap the argument and discuss the case. Below, I summarize the oral argument in some detail (with page and line references to the transcript) and offer my prediction of what the forthcoming opinion might hold.

Thursday, June 11, 2020

Structural Racism and COVID-19

Over the past two weeks, the United States—already hit hard by the COVID-19 pandemic—has reckoned with another public health crisis: police violence against Black Americans. The protests and outrage galvanized by the killing of George Floyd by a Minneapolis police officer have renewed public attention to the pervasiveness of racial inequality throughout the United States. With this backdrop, it is hard to ignore the disproportionate impact COVID-19 has had on Black Americans, who are dying at a rate twice as high as their share of the population.

In this blog post series, we have focused on how innovation and health laws have exacerbated the COVID-19 pandemic thus far, and how they can help spur development of affordable preventatives, diagnostics, and treatments. But we also think it is important to recognize how these laws and other legal institutions have often been complicit in creating the structural framework within which these racial disparities have persisted. In this post, we highlight the work of scholars who have focused on this issue and explain how structural racism contributes to disparities in COVID-19 cases and deaths, access to treatments among those who have been afflicted, and access to the most effective preventative interventions.

Thursday, June 4, 2020

Sean O'Connor's Historical Take on Different Types of Intellectual Property

I truly enjoyed Sean O'Connor's new paper, forthcoming in the George Mason Law Review, called "Distinguishing Different Kinds of Property in Patents and Copyrights." It is somewhat sui generis. But I guess I would describe it as a 'legal-historical take on how people perceived intellectual property in the past, with theoretical implications for IP today.'

Wednesday, June 3, 2020

How can policymakers encourage the expansion of at-home diagnostic testing for COVID-19?

As we have previously discussed, fighting the COVID-19 pandemic will require a massive expansion of testing. Diagnostic tests for who is currently infected are particularly important. Given a limited number of health-care providers and testing sites, at-home testing has emerged as an important route to expand diagnostic testing capability. But developing at-home diagnostic tests that are affordable, reliable, effective, and able to be administered by untrained individuals presents a number of challenges. How should policymakers encourage the development and deployment of such tests?

Why is at-home COVID-19 testing needed?

Currently, the vast majority of testing for active infection (principally by RT-PCR) requires a health-care worker trained to collect samples. In large part, this requirement arises because samples are collected using a nasopharyngeal swab—something like a very long Q-tip which is inserted through the nostril as far back as the ear. The task is unpleasant for the patient and requires training to do right. It can also be dangerous to the health-care worker, because patients often sneeze or cough in reaction to the swab, potentially exposing the worker to SARS-CoV-2.

As a result, getting tested for COVID-19 requires traveling to a testing site, whether a hospital, a clinic, or a drive-through site. Today, availability is still limited; appointments are often required, and some sites are limited to residents of a particular area. Getting to a testing site also requires actually getting to the site, which can be difficult for those without cars or ready access to public transportation (which itself brings risks). Unfortunately, the populations most vulnerable to COVID-19 frequently overlap with those lacking good access to personal transportation

At-home testing could ease the path to substantially increased testing, allowing more frequent testing of more people and readier access across different populations. At-home testing could lessen friction from transportation and site access and circumvent bottlenecks due to the limited availability of health-care workers.