Holcomb on The Moral Case for Adopting a U.S. Right to be Forgotten

Lindsay Holcomb (University of Pennsylvania Law School) has posted “The Moral Case for Adopting a U.S. Right to be Forgotten” (4 J. L. & Tech. at Tx. 151 (2021)) on SSRN. Here is the abstract:

This article challenges the notion that the right to be forgotten is in direct opposition to the American values of free expression and the public’s right to know by arguing that such a right has roots in American moral culture as well as jurisprudence in the right to rehabilitation, and ultimately, suggests adopting a form of the right to privacy in the U.S. Part I reviews the origins of the European right to be forgotten, focusing on the Google Spain decision and relevant articles of the General Data Protection Regulation (GDPR). Part II argues that the U.S. has long supported a rehabilitative notion of privacy, which provides sturdy ground on which the right to be forgotten could stand in the U.S. Part III addresses First Amendment criticisms of the right. Part IV assesses how the right to be forgotten might be operationalized in the U.S. This article concludes with a discussion of the moral benefits of a right to be forgotten, particularly in how a more forgiving society can in fact increase speech and democratic participation.

Linford & Nelson on Trademark Fame and Corpus Linguistics

Kyra Nelson (J. Reuben Clark Law School) & Jake Linford (Florida State University – College of Law) have posted “Trademark Fame and Corpus Linguistics” on SSRN. Here is the abstract:

Trademark law recognizes and embraces an inherent homonymy in commercial communication: The same word can mean different things in different commercial contexts. Thus, legal protection might extend to two or more owners who use the same symbol (like Delta) to indicate different sources of disparate goods or services (airlines, faucets). Generally, only those uses that threaten to confuse consumers – the use of a similar symbol on identical or related goods – are subject to legal sanction.

There are exceptions to this homonymous structure of trademark law. The law extends special protection to famous trademarks, not only against confusing use, but also against dilution: non-confusing use that blurs or tarnishes the distinctiveness of the famous mark. The result of protection against blurring is that the law treats the famous mark as if it were legally monosemous, i.e., as if the sole proper use of the term in the commercial context is to designate goods and services from the famous mark’s owner.

Protection against dilution extends only to famous marks, but courts and scholars apply differing standards for assessing fame. Nonetheless, the trend over time has been to treat fame as a threshold requiring both sufficient renown – the famous mark must be a household name – and relatively singular use approaching if not quite reaching monosemy.

This article argues that corpus linguistic analysis can provide evidence of whether a mark is sufficiently prominent and singular to qualify for anti-dilution protection. Corpus linguistics detects language patterns and meaning from analyzing actual language use. This article uses data from three large, publicly accessible databases (corpora) to investigate whether litigated trademarks are both prominent and unique. Courts and parties can consider frequency evidence to establish or refute prominence, and contextual evidence like concordance and collocation to establish relative singularity.

Corpus evidence has some advantages over standard methods of assessing fame. It is much cheaper to generate than survey evidence may be equally probative. Corpus analysis can help right-size dilution litigation: A litigant could estimate the prominence and singularity of an allegedly famous mark using corpus evidence prior to discovery and better predict whether the mark should qualify for anti-dilution protection. Judges should be able to rely on the results of corpus analysis with reasonable confidence. Additionally, corpus evidence can show use of a mark over time, providing courts with tools to assess when a mark first became famous, a question that a survey generated for litigation cannot readily answer.