bluuebunny/crossref_metadata_2025_split huggingface dataset:
Should Trademark Law Protect Non-Traditional Trademarks?
Authors: Desai Deven 
Published: February 2019

Abstract
Trademark should not protect non-traditional trademarks, but the practice will continue. Yet, by examining branding and related marketing and design practices, we can find ways to limit trademark expansion. In simplified terms, current U.S. and EU trademark law limits such protection by denying protection when a claimed feature is essential to competition. Both approaches require understanding and breaking apart what elements of a claimed mark are essential, and so miss the way branding operates. Branding uses aesthetics and pre-existing culture to create a whole, inseparable offering that captures essences to influence buyers and compete. Thus this chapter argues that stopping protection for non-traditional marks is the best choice. As that is unlikely, the chapter uses brand literature to show ways to deny protection to whole categories of non-traditional trademarks, and provide tools to show that any given claimed non-traditional mark is likely aesthetically functional and should not receive trademark protection.
Protecting Non-Traditional Trademarks in China
Authors: Sun Haochen 
Published: February 2019

Abstract
Drawing on a series of cases that Hermès has litigated in China, the chapter discusses how transnational companies should tap into the potential of non-traditional trademarks to promote their businesses in China. Section I of the chapter provides an overview of the most important requirements for registering such trademarks in China. It considers why the Chinese courts rejected Hermès’ bid to register the shape of its Kelly bag as a three-dimensional trademark in China. Through the lens of several trademark cases that the French high-fashion luxury brand litigated in China, Sections II and III offer nuanced analysis of how companies can protect their trademarks in the Chinese first-to-file registration system and how to determine the well-known-trademark status in the country. Sections IV and V further examine the lessons that can be learnt from the Hermès cases about securing anti-confusion and anti-dilution protection of non-traditional trademarks in China.
The Protection of (Three-Dimensional) Shape Trademarks and Its Implications for the Protection of Competition
Authors: Ghidini Gustavo 
Published: February 2019

Abstract
The exclusive protection of shapes (three-dimensional in particular) as trademarks of products, raises serious concerns about its possible negative impact on competition. The analysis of the European legal framework focuses on the risk of systemic impasse and over-protectionist consequences resulting from the coexistence of trademark and registered design protection. An interpretative solution capable of overcoming such impasse in a pro-competitive perspective is presented. Such solution is then confronted with the alleged “investment function” of trademarks as asserted by the CJEU—an assertion criticized as both systemically improper and deeply anti-competitive. The solution is finally reconciled with the need to avoid weakening the distinctive character of the overall appearance (“trade dress”) of industrial products.
Non-Traditional Trademarks
Authors: Lunney Glynn S. 
Published: February 2019

Abstract
Over the last sixty years, courts and the USPTO have engaged in an ill-advised expansion of trademark subject matter. Where once only words or emblems attached to a product could serve as a trademark, today a product’s design or packaging itself may receive such protection. This expansion was and is a mistake. While there may be rare cases where a product’s design or packaging conveys brand-specific information and could receive protection without impairing competitor’s ability to offer substitutes, such cases are the exception and not the rule. By recognizing trade dress protection within the trademark law framework, courts and the USPTO have made the exception into the rule. Trade dress protection today has become an anticompetitive weapon that forecloses competition with no redeeming benefits. Courts and the USPTO should therefore correct their mistake and deny trade dress substantive protection under the Lanham Act, as Congress intended.
Assessing the Impact of Registering Non-Traditional Marks
Authors: Brancusi Lavinia 
Published: February 2019

Abstract
This chapter discusses possible negative effects on market competition resulting from registration and exercise of NTTMs. A first insight into EU judicial precedents dealing with trademarks reveals the risk of different practices violating competition rules. A following inquiry from a “law and economics” approach emphasizes certain competition concerns characteristic of NTTMs. The focal point concerns the issue of product substitutability, with a consideration as to whether competition law perspective may be of some use for trademark law, especially for functionality cases featuring NTTMs. After articulating the need of applying a functionality test based on product delineation and an assessment of substitutable alternatives, separate remarks discuss market definition in competition law underlining cases of narrowly defined markets because of branding strategies. The study advocates the use of methods and proofs modeled on those applied in competition law for examining the registrability and resolution of conflicts related to NTTMs.
The Economics and Management of Non-Traditional Trademarks
Authors: Castaldi Carolina 
Published: February 2019

Abstract
Economists have largely neglected the phenomenon of NTTMs and its consequences for society so far, partly because of their limited interest in the social returns of trademarks in general. After reviewing the handful of economic studies on this matter, I present a first systematic empirical analysis of the extent of NTTM filings, with a focus on the number of filings, their nature, and the actors behind those filings. Using data from the USPTO, I find that NTTMs are steadily increasing, they are filed by very different types of firms, but they remain a relative small phenomenon, as compared to all trademark filings. I conclude by discussing avenues for further research.
Non-Traditional Trademarks and Inherently Valuable Expression
Authors: Ramsey Lisa P. 
Published: February 2019

Abstract
Trademark laws currently allow companies to obtain trademark rights in product configurations, colors, scents, sounds, flavors, textures, and other “non-traditional” marks that identify and distinguish the source of goods or services. This chapter argues that non-traditional trademarks convey expression protected by the right to freedom of expression in constitutions, human rights treaties, and statutes. Not only do distinctive non-traditional marks communicate source-identifying information, but these product attributes may also intrinsically convey information, ideas, or other messages unrelated to the trademark owner. Therefore trademark laws regulating this expression must have a sufficient justification, and governments should repeal or revise laws protecting non-traditional marks when they do not directly further trademark law’s goals and harm free expression. Nations should refuse to register non-traditional marks that expressed inherently valuable messages unrelated to source-identification before they were adopted or used as marks, or only grant such marks narrow protection.
The Radical Demand in Løgstrup's Ethics
Authors: Stern Robert 
Published: February 2019

Abstract
This book focuses on the ethics of the Danish philosopher and theologian K. E. Løgstrup (1905–81), and in particular on his key text The Ethical Demand (1956). The first part of the book provides a commentary on The Ethical Demand. The second part contains chapters on Løgstrup as a natural law theorist; his critique of Kant and Kierkegaard; his relation to Levinas; the difference between his position and the second-person ethics of Stephen Darwall; and the role of Luther in Løgstrup’s thinking. Overall, it is argued that Løgstrup rejects accounts of ethical obligation based on the commands of God, or on abstract principles governing practical reason, or on social norms; instead he develops a different picture, at the basis of which is our interdependence, which he argues gives his ethics a grounding in the nature of life itself. The book claims that Løgstrup offers a distinctive and attractive account of our moral obligation to others, which fits into the natural law tradition.
Ethics, Science, and Poetry
Authors: Stern Robert 
Published: February 2019

Abstract
This chapter covers Chapters 10 and 11 of The Ethical Demand, which focus on how Løgstrup sees the demand in relation to science on the one hand, and poetry on the other. In relation to science, Løgstrup argues for a form of philosophy that might be seen to challenge the ‘anti-metaphysical’ assumptions of scientific thinking, particularly in the way his account attributes a kind of normative authority to the demand as standing in judgement over our actions. Løgstrup also considers how far certain kinds of scientific determinism might pose a challenge to ethics, arguing that this challenge can be resisted. In Chapter 11, Løgstrup asks whether poetry can have implications for ethics, suggesting poetry can break through the triviality in which our lives are often lived, thus making us properly attentive to the world that surrounds us, including other people.
Normativity as Natural Law
Authors: Stern Robert 
Published: February 2019

Abstract
This chapter argues that Løgstrup’s position on the question of moral obligation is closest to a natural law outlook, not only in The Ethical Demand but also in later works when he speaks of his ‘ontological ethics’ and ‘the sovereign expressions of life’ (§7.1). Alasdair MacIntyre’s claim that Løgstrup is not a natural law theorist (§7.2), and also Stephen Darwall’s claim that in this earlier work Løgstrup was a divine command theorist (§7.3), are both considered and rejected. The next section argues that the natural law theory Løgstrup adopted is non-theistic rather than theistic (§7.4). Finally, this account of Løgstrup as a natural law theorist is connected to subsequent chapters, where it will be suggested that this approach underpins his critique of Kant and Kierkegaard, as well as setting him at odds with Levinas and Darwall (§7.5).
Encountering Levinas
Authors: Stern Robert 
Published: February 2019

Abstract
This chapter relates Løgstrup’s work to the ideas of Emmanuel Levinas. It begins by focusing on similarities between them (§9.1), which might then suggest ways in which each can be used to come to the aid of the other on certain shared difficulties (§9.2). But then certain significant divergences are uncovered (§9.3), which also opens up the possibility of a critical dialogue between Løgstrup and Levinas on certain fundamental issues and questions (§9.4). It is argued that at the basis of this divergence is Løgstrup’s natural law approach to the problem of normativity, and thus to the ethical demand, which puts him at odds with Levinas’s suggestion that this normativity arises from the authority of the other as a commander.
Interpreting Løgstrup
Authors: Stern Robert 
Published: February 2019

Abstract
This concluding chapter returns to the challenges that Løgstrup faces regarding the ethical demand as he characterizes it (§12.1), and the ‘understanding of life’ on which he claims it is based, particularly the idea that life is a gift (§12.2). The chapter also considers what, if anything, is distinctive about Løgstrup’s ethics (§12.3). His position is compared and contrasted to Kantian deontology, utilitarian consequentialism, and virtue theory, while the connections with contemporary care ethics are also explored. Overall, it is argued that this study of Løgstrup suggests the power and coherence of his ethical vision, and the important but underexplored contribution that he can make to contemporary thinking in ethics.
The Method of Language-Games as a Method of Logic
Authors: Kuusela Oskari 
Published: February 2019

Abstract
This chapter develops an interpretation of Wittgenstein’s method of language-games as a method of logic that exhibits continuities with Frege’s, Russell’s, and the early Wittgenstein’s conceptions of logic and logical analysis as the method of philosophy. On the proposed interpretation, the method of language-games is a method for isolating and modelling aspects of the uses of linguistic expressions embedded in human activities that enables one to clarify complex uses of expressions by gradually building up the complexity of clarificatory models. Wittgenstein’s introduction of the language-game method constitutes an attempt to overcome certain limitations of calculus-based logical methods, and to extend the reach of logical methods, so as to make accessible areas of language use and thought that are not accessible by means of calculus-based methods. Rather than rejected, calculus-based methods are retained as a special case of logical methodology. The method of language-games is thus compatible with the employment of calculus-based methods in logic and philosophy, and the method of language-games involves no exclusive claim to being the correct method.
Critique and Utopia in Postcolonial Historical Fiction
Authors: Forter Greg 
Published: February 2019

Abstract
Postcolonial historical fiction offers readers valuable resources for thinking the prehistory of our present. The genre’s treatment of colonialism as geographically omnivorous yet temporally “out of joint” with itself gives it a special purchase on the continuities between the colonial era and our own. These features also enable the genre to distill from our colonial pasts the evanescent, utopian intimations of a properly postcolonial future. Critique and Utopia in Postcolonial Historical Fiction arrives at these insights by juxtaposing novels from the Atlantic world with books from the Indian subcontinent. Attending to the links across these regions, Forter develops luminous readings of novels by Patrick Chamoiseau, J. G. Farrell, Amitav Ghosh, Marlon James, Hari Kunzru, Toni Morrison, Marlene van Niekerk, Arundhati Roy, Kamila Shamsie, and Barry Unsworth. He shows how these works not only transform our understanding of the colonial past and the futures that might issue from it, but also contribute to pressing debates in postcolonial theory—debates about the politics of literary forms, the links between cycles of capital accumulation and the emergence of new genres, the meaning of “working through” traumas in the postcolonial context, the relationship between colonial and panoptical power, the continued salience of hybridity and mimicry for the study of colonialism, and the tension between national liberation struggles and transnational forms of solidarity. Beautifully written and meticulously theorized, Critique and Utopia in Postcolonial Historical Fiction will be of interest to students of world literature, Marxist critics, postcolonial theorists, and thinkers of the utopian.
Colonial Trauma, Utopian Carnality, Modernist Form
Authors: Forter Greg 
Published: February 2019

Abstract
Understandings of trauma in the colonial context fall largely into two strands. A therapeutic strand endorses the potential for “healing” from colonial trauma in the present, postcolonial era but fails to grasp how much this era reprises the toxins of colonialism itself. This view implicitly encourages the once-colonized to align themselves with the purported “health” of postcolonial modernity. An anti-therapeutic strand grants the need for a critique of the postcolonial but generalizes the historically specific toxins of that era to any and all social orders—hence making it difficult to imagine social change. Toni Morrison’s Beloved and Arundhati Roy’s The God of Small Things provide more historically astute and dialectical accounts than the theoretical models offer. These examples of postcolonial historical fiction are modernist in form; they explore distinct yet homologous types of domination (slavery and the slave trade on one hand, exploitation colonialism in India on the other) through a similar set of representational techniques. These techniques are crucial to the novels’ political astuteness. The books’ temporally disordered forms at once record the fragmentations and devastations visited on the colonial body and provide intimations of an alternative, erotic futurity in which those bodies will have been made whole.
Not Quite Hope and Other Political Emotions in the Gilded Age
Authors: Wolff Nathan 
Published: February 2019

Abstract
Not Quite Hope and Other Political Emotions in the Gilded Age argues that late-nineteenth-century US fiction grapples with and helps to conceptualize the disagreeable feelings that are both a threat to citizens’ agency and an inescapable part of the emotional life of democracy—then as now. In detailing the corruption and venality for which the period remains known, authors including Mark Twain, Harriet Beecher Stowe, Henry Adams, and Helen Hunt Jackson evoked the depressing inefficacy of reform, the lunatic passions of the mob, and the revolting appetites of lobbyists and office seekers. Readers and critics of these Washington novels, historical romances, and satirical romans à clef have denounced their fiercely negative tone, seeing it as a sign of cynicism and elitism. This book argues, in contrast, that their distrust of politics is coupled with an intense investment in it—not quite apathy, but not quite hope. Chapters examine both common and idiosyncratic forms of political emotion, including “crazy love,” disgust, “election fatigue,” and the myriad feelings of hatred and suspicion provoked by the figure of the hypocrite. In so doing, the book corrects critics’ too-narrow focus on “sympathy” as the American novel’s model political emotion. We think of reform novels as fostering feeling for fellow citizens or for specific causes. Not Quite Hope argues that Gilded Age fiction refocuses attention on the unstable emotions that shape our relation to politics as such.
Crazy Love
Authors: Wolff Nathan 
Published: February 2019

Abstract
This chapter argues that Harriet Beecher Stowe’s My Wife and I (1871) and Mark Twain’s The Gilded Age (1873) dramatize the difficulty, but also necessity, of theorizing desire and love as simultaneously social adhesives and solvents. My Wife and I and The Gilded Age depict the emotionality of the free love movement, embodied by the radical reformer Victoria Woodhull, as an assault on property and responsibility—a form of “emotional insanity.” Together, they reveal a fraught engagement with love as a force capable of holding groups together and shattering existing institutions. An afterword to this chapter further discusses how this tension anticipates and complicates later efforts (by Le Bon, Freud, et al.) to denigrate the supposed irrationality of the crowd, as well as recent critical efforts to celebrate the putatively unmediated emotions of popular political movements.
On the Hatred of Hypocrites
Authors: Wolff Nathan 
Published: February 2019

Abstract
This chapter argues that political hypocrisy—a so-called “minor” vice that often provokes outsized anger—was scrutinized and repurposed in key late-nineteenth-century texts dealing with Reconstruction and Gilded Age politics. It focuses on Doctor Huguet (1891) by Ignatius Donnelly, founder of the American People’s Party. Doctor Huguet depicts a white Southern reformer who suppresses his feelings of solidarity with African Americans in order to gain elected office. In an act of divine retribution, Huguet is turned black for what the text calls his “hypocritical” betrayal. Like many populists, Donnelly hoped economic interests might offer a rational route to overcome sectional passions. Yet in the novel, his distrust of political ambition, bargaining, and strategizing (collectively diagnosed as “hypocrisy”) threatens to fuel a full-on retreat from politics. The chapter’s final section looks to W.E.B. Du Bois’s Black Reconstruction (1935) to help theorize the hypocrisy that Donnelly’s novel anxiously dramatizes.
Cynical Reason in the Cranky Age
Authors: Wolff Nathan 
Published: February 2019

Abstract
Drawing on Peter Sloterdijk’s Critique of Cynical Reason (1983), this chapter tracks shifts in Mark Twain’s political imagination to help interrogate “cynicism” as a feeling and a hermeneutic. After the 1881 assassination of President Garfield by Charles Guiteau, some commentators looked back to Twain’s The Gilded Age (1873) for his satire of the insanity defense, which Twain saw as a cynical ruse. Yet when Twain returns to a character from The Gilded Age in The American Claimant (1892), the eccentric Colonel Sellers, he rejects the violence of legal reason and affirms a species of lunacy as an irrational-but-necessary optimism. Through a reading of these novels’ unstable tone, this chapter shows how cynicism is defined by the intensity of its own affective involvement in politics (expressed aversively as a smart form of bitterness) and a deep suspicion of others’ “positive” affects as signs of unthinking credulity.
Coda Election Fatigue
Authors: Wolff Nathan 
Published: February 2019

Abstract
If preceding chapters employed an atmospheric metaphor for thinking about politics’ affective environments the Coda argues that recent theories of temporality provide another important model for understanding Gilded Age political emotion. The chapter examines Frances Hodgson Burnett’s Washington novel Through One Administration (1881), whose title invokes a unit of official time that also bookends the novel’s love plots. Like Whitman’s neologism “presidentiad,” Burnett’s “administration” privileges the rhythms of electoral politics while also imagining that such timeframes could organize alternative forms of intimacy. This chapter argues that Burnett’s tale of Washingtonians moving alongside but not fully in step with administrative time suggests a rubric for revising recent queer theories of temporality which often valorize asynchronous sociality as necessarily radical. The chapter concludes by noting that in twenty-first-century vernacular “election fatigue” offers a related diagnosis of negative political emotions as indexes of the public’s fraught engagement with politics.
Introduction Bureaucratic Vistas
Authors: Wolff Nathan 
Published: February 2019

Abstract
This chapter sheds new light on the US Gilded Age (roughly the final three decades of the nineteenth century), revealing it—and its literature—to be a period defined as much by cynicism about corruption as by actual political venality. It sets out three of the book’s overarching interventions: first, calling us to expand our vocabulary of “political emotion” beyond sympathy to a wider range of disagreeable and in-between feelings; second, providing frameworks for analyzing the relation, rather than the opposition, between reason and emotion in political contexts (in particular, via the affective tenor of late-nineteenth-century bureaucratic discourse); third, claiming that we must supplement accounts of nineteenth-century US literature’s utopian moods with a view of those quotidian feelings—so often negative—that define encounters with existing political institutions, as foregrounded by Gilded Age fiction. Authors discussed include Frances Hodgson Burnett, Herman Melville, Mark Twain, and Walt Whitman.