Katya Assaf | The Hebrew University of Jerusalem (original) (raw)

Drafts by Katya Assaf

CARDOZO ARTS & ENTERTAINMENT, 2017

Patent law is about creating economic incentives to innovate. It grants the inventors of new, non... more Patent law is about creating economic incentives to innovate. It
grants the inventors of new, non-obvious, and useful technologies time-limited market exclusivity over their inventions. The idea behind this
mechanism is to make socially desirable inventive activity privately
profitable. As long as the invention withstands the patentability criteria,
the inventor’s contribution to technological progress is believed to
justify the social costs associated with market exclusivity, such as
premium prices, reduced variety, and deadweight losses. The Patent
and Trademark Office (PTO) examines patent applications and decides
whether the inventions in question fulfill these criteria.
Yet, as several scholars note, today many registered patents
embrace technologies that would likely fail to withstand the legal
patentability requirements. Several factors make the PTO prone to
issuing such “weak” patents. Notwithstanding their doubtful validity,
weak patents exert a significant market influence, allowing their owners
to stop other firms from using similar technologies or to extract fees for
such use. These practices impose significant costs on the public, without justification in terms of contribution to technological progress. Some fields of technology are overcrowded with patents, many of which are weak, creating significant risks and costs for productive firms. This has led Congress, courts, and scholars to seek solutions for reforming
patent law, mainly focusing on improving the accuracy of the PTO
examination and reducing the risks associated with patent infringement.
This Article proposes an alternative way of coping with the
phenomenon of weak patents. It identifies a basic flaw in patent law––
the asymmetry of risk allocation. The system is predisposed in favor of
patent holders and against alleged infringers. The considerable legal
uncertainty associated with patent law affects parties to patent conflicts
differently. When a firm uses a patented technology, or a similar one,
neither the patent owner nor the user knows with certainty whether the
patent is valid and whether the use is infringing. Yet, if a court finds the
patent valid and the use infringing, the user will be liable for the
damages inflicted upon the patent owner. In contrast, if the court finds
the patent invalid or the use non-infringing, the patent owner will
usually bear no liability for the damages inflicted upon the user and the
public. This asymmetry gives much bargaining power to patent owners
and invites opportunism. This Article proposes to reconsider the basic
risk allocation in patent law and to introduce liability for damages
caused by invalid patents.

The Protection of Non-Traditional Trademarks (Oxford University Press, Edited by Irene Calboli and Martin Senftleben), 2019

This chapter focuses on the protection of non-traditional trademarks, with a specific focus on it... more This chapter focuses on the protection of non-traditional trademarks, with a specific focus on its social implications and its interplay with different cultural traditions. The term “non-traditional trademarks” commonly refers to new trademark forms, such as product shapes, designs or colors. Such trademark protection may restrict copying of product elements that are generally not protected, no longer protected or not protectable with patents, copyrights, or design patents. In turn, this restriction can directly affect market competition, as several contributions to the book have specifically observed. In addition, since trademarked products, particularly those produced by high-end brands, are often used as status symbols in social interaction, protection of non-traditional trademarks can also have significant cultural effects. In general, the impact of trademark protection on social interactions has been intensively discussed in the literature. This chapter outlines an additional perspective by focusing specifically on “non-traditionality,” that is, inconsistency with traditional values, which the protection of non-traditional trademarks creates.

Western jurisdictions hold different views on imitation: while the United States (U.S.) legal system normally strives to encourage it, the legal systems of continental Europe tend to be much more cautious. This difference has to do with the more general cultural dispute between the Old and the New World on authenticity and imitation. On a subtler level, this dispute is interconnected with the tradition of preserving established social orders – which is typical for continental Europe – and the ideal of social mobility – which characterizes American national ethos. The current legal tendency to protect “non-traditional” trademarks against imitation preserves status privileges, thus clashing with the ideal of social mobility. Hence, in the U.S. context, this protection is non-traditional in an additional sense: it is dissonant with a most fundamental cultural tradition of that country.

Law & Social Inquiry, 2012

People in all societies have a tendency toward magical thinking. This human inclination is extens... more People in all societies have a tendency toward magical thinking. This human inclination is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us successful, happy, and fulfilled. In this article, 1 suggest that such advertising creates a system of beliefs resembling a totemic religion. In this religion, brands perform the role of sacred objects.
Trademark law initially aims at preventing consumer confusion. Yet, today, famous trademarks are extensively protected against nonconfusing associations. 1 argue in this article that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and trademark doctrines, such as the doctrine of dilution, I suggest that famous marks are legally treated as magical, sacred objects. This legal approach amounts to endorsing the commercial religion of brands.

Journal of Intellectual Property Law & Practice, 2008

This article deals with the cultural meaning of trademarks and the social significance of its leg... more This article deals with the cultural meaning of trademarks and the social significance of its legal protection.
Trademarks are symbols designed to enable the consumer to identify without confusion the source of various goods and services. Today, however, trademarks are much more than source identifiers. They are culturally meaningful signs. Thus, for example, the trademark “Coca-Cola,” in addition to conveying information about the origin of soft drinks, is associated with freedom, youth, joy and globalization. The trademark “Chanel” stands not only for fragrances and apparel, but also for exclusivity, intelligence and European chic. The cultural meaning of the Olympic rings and Mickey Mouse, both registered trademarks, can hardly be gasped in a few words. Famous trademarks embed values, visions and ideals we believe in. As cultural signs, they occupy a rather central place in our society.
The cultural meaning of a trademark is carefully built up by its owner by means of advertising and other marketing techniques. These techniques create associative links between the trademark and various positive cultural signs such as freedom, youth, intelligence, etc. This article argues that these links are reciprocal. That is, while the trademark begins to carry some of the meaning of the cultural signs it has been linked to, these cultural signs also absorb some of the commercial flavor of the mark.

GRUR Int., 2008

Dieser Aufsatz befasst sich mit der kulturellen Bedeutung von Marken und den sozialen Konsequenze... more Dieser Aufsatz befasst sich mit der kulturellen Bedeutung von Marken und den sozialen Konsequenzen ihres rechtlichen Schutzes.
Eine Marke ist ein Zeichen, das dafür bestimmt ist, dem Verbraucher die Waren bzw. Dienstleistungen des Markeninhabers erkennen zu lassen und sie von denjenigen anderer Anbieter zu unterscheiden. Der primäre Zweck des Markenrechts ist es, die Marke als Herkunftszeichen zu schützen, was vor allem durch das Verbot einer verwechselbaren Benutzung durch Dritte erreicht wird.
Dennoch sind heute manche bekannte Marken mehr als bloßen Herkunftszeichen – sie sind vielmehr bedeutsame kulturelle Zeichen. So stehen bespielsweise die Marken „McDonald’s“ und „Coca-Cola“ nicht nur für die jeweiligen Produkte, sondern auch für Freiheit, amerikanischen Geist, jugendlichen Lebensstil, Globalisierung usw. Die Marke „Chanel“ wird nicht nur mit Parfüm und Kleidung, sondern auch mit Eleganz und Schick assoziiert. Und die kulturelle Bedeutung des Olympischen Symbols und von Mickey Mouse, beide als Marken eingetragen, lässt sich schwer mit wenigen Worten fassen. Bekannte Marken verkörpern wichtige Werte, Visionen und Ideale. Als kulturelle Zeichen haben sie eine ziemlich zentrale Stellung in unserer Gesellschaft.
Die kulturelle Bedeutung der Marke wird von ihrem Inhaber mithilfe von Werbung und anderen Marketingmethoden sorgfältig aufgebaut. Diese Methoden erschaffen assoziative Bindungen zwischen der Marke und verschiedenen kulturellen Zeichen, wie Freiheit, Jugend, Eleganz usw. Dabei überträgt sich jedoch auch etwas von der kommerziellen Beigeschmack der Marken auf die verwendeten kulturellen Zeichen, was schließlich zu Verwässerung ihrer Bedeutung führt. Dieser Aufsatz beschäftigt sich mit dem fließenden Wandel der Bedeutung von kulturellen Zeichen in kommerzielle Marken und von Marken in andere Kontexte. Er analysiert dabei, welche Rolle das deutsche und das US-amerikanische Rechtssystem zu diesem Prozess einnehmen.

IDEA: The Intellectual Property Law Review, 2008

The cultural meaning of a trademark is built up by creating associative links between the mark an... more The cultural meaning of a trademark is built up by creating associative links between the mark and various positive cultural signs such as freedom, youth and happiness. This article argues that these links are reciprocal. That is, while the trademark begins to carry some of the meaning of the cultural signs it has been linked to, these cultural signs also absorb some of the meaning of the mark. This article develops a semiotic model, which helps to analyze the flow of meaning from non-commercial cultural signs into trademarks and from trademarks into other contexts. It argues that, by protecting the cultural meaning of trademarks, the legal system encourages the commercialization of culture and reinforces the dominance of consumer culture in our society.

GRUR Int, 2015

Das kann ich nicht glauben!“ sagte Alice. „Nein?“ sagte die Königin in mitleidigem Ton. „Versuch ... more Das kann ich nicht glauben!“ sagte Alice. „Nein?“ sagte die Königin in mitleidigem Ton. „Versuch es nochmal: hol tief Luft und schließ die Augen.“ Alice lachte. „Das hat keinen Zweck,“ sagte sie. „Man kann nicht unmögliche Dinge glauben.“ „Ich wage zu behaupten, daß du nicht viel Übung hast,“ sagte die Königin. „Als ich in deinem Alter war, habe ich immer jeden Tag eine halbe Stunde ge-übt. Ja, manchmal habe ich nicht weniger als sechs unmögliche Dinge vor dem Frühstück geglaubt .“

Alices Anmerkung, dass man unmögliche Dinge nicht glauben kann, kommt uns selbst-verständlich vor, klingt sogar etwas tautologisch. In der Tat, wie kann man etwas glau-ben, wenn man weißt, dass es unmöglich ist? Königins Empfehlung scheint auf den ers-ten Blick lächerlich. Denn in unserer Auffassung von was es meint, ein Mensch zu sein, ist die Idee der Rationalität grundlegend. Indessen, wie empirische Forschungen konsis-tent beweisen, hatte die Königin Recht: man kann unmögliche Dinge glauben und kann es zuzeiten sogar schwer finden, sie nicht zu glauben. Psychologische Untersuchungen zeigen immer wieder, dass die Menschen eine starke Neigung zu irrationalem Denken und Verhalten haben.
Das Rechtssystem teilt weitgehend Alices Ansicht und in der Regel, betrachtet den Men-schen als ein rationales Wesen. Da empirische Beweise dieser Auffassung deutlich wi-dersprechen, schlagen Forscher zunehmend vor, Regelungen in verschiedenen Rechtsbe-reichen zu ändern, so dass sie die menschliche Denkweise adäquater widerspiegeln. Die-ser Aufsatz wird sich mit einem spezifischen Typen von irrationaler Denkweise, bekannt als „magisches Denken“, befassen. Ich werde prüfen, wie das deutsche und das US-amerikanische Rechtssysteme diese Denkweise im Kontext der Werbung und Marken behandeln.

N.Y.U. REVIEW OF LAW & SOCIAL CHANGE, 2013

This paper argues that our legal thought is profoundly influenced by the capitalist ideology. The... more This paper argues that our legal thought is profoundly influenced by the capitalist ideology. The essence of this ideology is that the state should provide individuals with best possible means to pursue their own financial gain. Using examples from diverse fields of law, this paper demonstrates that the legal system most readily secures one's personal economic freedom. The freedom to pursue one's non-pecuniary interests and collective interests has often deficient, if any, legal recognition. Yet, the human personality has various aspects. People are often concerned with public issues such as clean environment, humane treatment of animals, equality and justice, etc. A legal system wishing to provide its citizens with meaningful freedom must take account of the various aspects of human nature. To be free means to be free as a real person, and not as a fictional legal character motivated solely by its own pecuniary interest.

Alabama Law Review, 2016

This Article focuses on social competition and the role of the legal system in regulating it. Whi... more This Article focuses on social competition and the role of the legal system in regulating it. While competition for status is universal, the values that confer status differ greatly across cultures and over time. In contemporary Western societies, material possessions serve as one of the most important determinants of personal status. This social reality results in consumption being a significant site of social competition.
Yet, competition over who can consume the most comes at a high price in both environmental and human terms. It also imposes high costs for those who engage in it, both winners and losers. Consumption-based competition emerges as an instance of the prisoner’s dilemma: while society would be better off if consumption races stopped, rational individuals do their best to excel in these races so long as they continue. This Article proposes using trademark law to undermine excessive social competition over consumption and channel interpersonal competition toward socially beneficial goals. Specifically, it proposes encouraging “competitive altruism”—a tournament over good deeds that can yield benefits for its participants as well as society at large. It envisions this tournament as a partial replacement for competition over consumption, particularly the wasteful kind, and posits a system of “ethical consumption signs” to help bring this about.

Connecticut Law Review, 2010

This Article focuses on “brand fetishism”-the phenomenon of perceiving trademarks as spiritual en... more This Article focuses on “brand fetishism”-the phenomenon of perceiving trademarks as spiritual entities rather than as informational devices. Modern corporations strive to create brands with personalities and souls, brands that tug at consumers' heartstrings. Meanwhile, trademark law is intended to protect trademarks as informational tools reducing consumers' search costs. This Article examines this dissonance between trademark law rationales and the current use of the corporate trademark.
Research demonstrates that emotional branding results in mistaken quality judgments and hinders rational purchasing decisions by consumers, thereby distorting market competition. Therefore, this Article proposes that trademark law should serve to discourage brand fetishism, and should act to restore the original informative function of trademarks. Yet, as this Article demonstrates, trademark law in practice supports and encourages brand fetishism. This Article surveys the various doctrines in trademark law that, deliberately or not, result in this undesirable outcome, and suggests subsequent changes.

Law and Social Inquiry, 2019

This article considers how legal systems capture different cultural perceptions of work in an ind... more This article considers how legal systems capture different cultural perceptions of work in an individual's life. We inquire how two models—"human capital," based on the works of Adam Smith; and "vocation," based on the works of G. W. F. Hegel—are reflected in legal regulations and judicial rhetoric in the United States and Germany. Specifically, we examine how these two legal systems treat the practice of using personal names—the most direct referents to individuals’ identities—in business. We discuss three sets of cases: cases involving the use of personal names as trademarks, cases involving conflicts between parties with similar names, and cases involving the transfer of rights in personal names. The article demonstrates that the US legal system treats work as a commercial asset, as “human capital” in Smith’s sense, whereas German law perceives work as an integral part of one’s identity, echoing the Hegelian line of “vocation.”

Papers by Katya Assaf

Social Science Research Network, 2013

Social Science Research Network, 2014

This paper focuses on social competition and the role of the legal system in regulating it. While... more This paper focuses on social competition and the role of the legal system in regulating it. While competition for status is universal, the values that confer status differ greatly across cultures and over time. In contemporary western societies, material possessions serve as one of the most important determinants of personal status. This social reality results in consumption being a significant site of social competition.Yet, competition over who can consume the most comes at a high price in both environmental and human terms. It also imposes high costs for those who engage in it, both winners and losers. Consumption-based competition emerges as an instance of the prisoner’s dilemma: while society would be better off if consumption races stopped, rational individuals do their best to excel in these races so long as they continue. This article proposes using trademark law to undermine excessive social competition over consumption and channel interpersonal competition toward socially beneficial goals. Specifically, it proposes encouraging "competitive altruism" — a tournament over good deeds that can yield benefits for its participants as well as society at large. It envisions this tournament as a partial replacement for competition over consumption, particularly the wasteful kind, and posits a system of "ethical consumption signs" to help bring this about.

Social Science Research Network, Sep 1, 2004

On the 30th of March, 2004, the Supreme Court of Israel gave its decision in McDonald’s v. Ariel ... more On the 30th of March, 2004, the Supreme Court of Israel gave its decision in McDonald’s v. Ariel McDonald. This decision raises interesting questions concerning the scope of protection of a trademark image. This article will examine the consequences of the decision in the light of the rationales of Intellectual Property law in general and Trademark law in particular.

Cosmopolitan Civil Societies: An Interdisciplinary Journal, Jul 29, 2022

Harvard Civil Rights-Civil Liberties Law Review, 2022

Every city has large public spaces that are accessible to everyone. City life is what happens in ... more Every city has large public spaces that are accessible to everyone. City life is what happens in these spaces, this is where its spirit emerges and evolves. Being freely accessible to everyone, these spaces offer opportunities for spontaneous encounters between inhabitants. This communication, albeit mostly indirect, determines the very character of the city. Urban public spaces tend to develop their own rules of conduct, their own dynamics and atmosphere. Recognizing their central role in cities, courts identify urban public spaces as quintessential “public fora.”
The visual design of urban public spaces (hereinafter “cityscape”) has an important impact on city life – it can channel interpersonal communication into certain directions while excluding others; it can powerfully communicate notions of what is important, what is acceptable, and what the right order of things in society is. While everyone may access urban public spaces, cityscapes are created by a very limited social group, consisting predominantly of property owners, politicians, and commercial enterprises. Real estate developers and municipal authorities decide which entities will occupy the key locations in our city, what information city billboards will communicate to us, and what kind of public art we will encounter on a daily basis. Non-surprisingly, this results in cityscapes highlighting the power of property, the importance of mainstream politics (such as elections), and, perhaps most conspicuously, the dominance of consumption in our lives. Indeed, as urban public spaces increasingly turn into sites of consumption, advertising occupies growing portions of cityscapes, demanding ever-larger portions of our attention. Art adorning urban spaces largely conforms to widespread aesthetic values and accepted social norms.
These hegemonic cityscapes confront tireless resistance. Graffiti – uncommissioned painting and writing on city surfaces – disrupts the integrity of the official visual narratives, relentlessly claiming its own right to the city and offering alternative, unofficial cityscapes.
Protecting official cityscapes, the legal system fights back. Local authorities remove the uncommissioned paintings and restore the official cityscapes. They define graffiti as a serious “epidemic” and declare “wars on graffiti.” Legislators toughen the “war on graffiti” by increasing existing penalties and introducing new ones, extending police search powers, and restricting various graffiti-related activities. The police expends substantial efforts to eliminate graffiti, spotting and arresting the writers. Finally, courts frequently issue remarkably high penalties for graffiti, expressing their dismay with what they see as a meaningless attack on property.
These legal players are joined by property owners, who report graffiti cases to the police, sometimes remove the painting themselves, and sometimes take private measures to prevent graffiti. An additional significant force in this arena is the media that usually picture graffiti writers as “vandals” and “hooligans,” creating and fortifying social hostility toward them.
This “war on graffiti” is commonly framed in terms of protecting property against paint. Yet, as this paper will reveal, the actual war is fought in battleground of narratives. Not all graffiti pieces are treated the same way. Messages that conform to the dominant narratives are usually met with sympathy and not punished. For instance, during the current Covid-19 outbreak, the media praises graffiti messages asking people to wash their hands or thanking the medical staff, while property owners and local authorities frequently chose not to remove such pieces. At the same time, non-conformist messages, such as “corona will kill us” are quickly removed, most severely condemned by the press, and reported to the police.
The same is true for paintings: legal players protecting the official cityscape tend to accept pieces that conform to prevailing aesthetic standards, especially if made by famous artists. Thus, illegal works of a renowned graffiti artists are sometimes safeguarded by protective casting, and even restored by local authorities if “vandalized” by subsequent writers.
In other words, the real war on graffiti a war fought over urban narratives. Property owners and authorities put great efforts into preserving the official cityscapes from disrupting messages, but readily accept illegal paintings that conform to their narratives. This policy reinforces the hegemony of the official urban narratives and suppresses alternative voices. In this paper, we will identify the narratives that enjoy a privileged position in the cityscapes and are constant winners in the battlefield over the narratives dominating our shared visual environment. We will argue that these highly one-sided cityscapes latently obstruct the efforts of making cities more inclusive, democratic, and multi-voiced.
This paper proceeds as follows. Part I describes legal conflicts over the placement of various expressive elements into the cityscapes and their removal therefrom. Analyzing conflicts over expressions that seek their way into the cityscapes, as well as expressions, whose presence in the cityscapes encounters objections, we will identify the narratives that constantly prevail in such conflicts. These permanent winners represent the official narratives conveyed by the cityscapes. Part II focuses on unofficial cityscapes created by graffiti. It demonstrates that the legal treatment of graffiti is greatly dependent on the narratives it conveys, whereas illegal pieces that conform to the official narratives enjoy a highly privileged position. Part III will criticize the current state of affairs, in which official urban narratives occupy a hegemonic position, controlling our cityscapes and, consequently, largely dominating the dynamics of city life itself. It will conclude the discussion with a vision of an alternative legal order, one in which urban narratives emerge in a free and uncontrolled social discourse.

Cosmopolitan Civil Societies: An Interdisciplinary Journal, 2022

The visual design of urban public spaces (hereinafter "cityscape") has an important impact on cit... more The visual design of urban public spaces (hereinafter "cityscape") has an important impact on city life-it can channel interpersonal communication into certain directions while excluding others; it can powerfully communicate notions of what is socially acceptable or important. Yet, while everyone may access urban public spaces, cityscapes are designed by a very limited social group. This paper focuses on the narratives embedded in the cityscapes. Analyzing legal conflicts arising around expressions that seek their way into the shared visual environment, as well as expressions whose presence in the cityscapes is disputed, we trace the dynamics of battles over urban narratives. The discussion of legal rules is complemented by photographs. Rather than illustrating the text, the photographs will relate to the discussed topics in their own way, enriching the discussion and broadening its perspective.

This Article focuses on “brand fetishism”—the phenomenon of perceiving trademarks as spiritual en... more This Article focuses on “brand fetishism”—the phenomenon of perceiving trademarks as spiritual entities rather than as informational devices. Modern corporations strive to create brands with personalities and souls, brands that tug at consumers’ heartstrings. Meanwhile, trademark law is intended to protect trademarks as informational tools reducing consumers’ search costs. This Article examines this dissonance between trademark law rationales and the current use of the corporate trademark. Research demonstrates that emotional branding results in mistaken quality judgments and hinders rational purchasing decisions by consumers, thereby distorting market competition. Therefore, this Article proposes that trademark law should serve to discourage brand fetishism, and should act to restore the original informative function of trademarks. Yet, as this Article demonstrates, trademark law in practice supports and encourages brand fetishism. This Article surveys the various doctrines in trad...

This essay focuses on graffiti – the practice of illegal writing and painting on trains, walls, b... more This essay focuses on graffiti – the practice of illegal writing and painting on trains, walls, bridges, and other publicly visual surfaces. Although the practice of uncommissioned painting of images on walls dates back to the dawn of civilization, graffiti in its current form is a distinct social and artistic phenomenon that started in New York and Philadelphia in the 1960s, has grown into an international movement, and is constantly expanding, despite substantial efforts to fight it on the part of the authorities. Scholars from a variety of disciplines have studied graffiti, revealing the diverse social and economic backgrounds of the painters, their various motivations, and the different forms graffiti paintings take. Despite this diversity, several scholars suggested that all graffiti communicates a common message. This message reveals and challenges the hegemonic power of property, commerce, and politics that dominate our visual environment. In addition, graffiti opposes the is...

CARDOZO ARTS & ENTERTAINMENT, 2017

The Protection of Non-Traditional Trademarks (Oxford University Press, Edited by Irene Calboli and Martin Senftleben), 2019

Law & Social Inquiry, 2012

Journal of Intellectual Property Law & Practice, 2008

GRUR Int., 2008

IDEA: The Intellectual Property Law Review, 2008

GRUR Int, 2015

N.Y.U. REVIEW OF LAW & SOCIAL CHANGE, 2013

Alabama Law Review, 2016

Connecticut Law Review, 2010

Law and Social Inquiry, 2019

Social Science Research Network, 2013

Social Science Research Network, 2014

Social Science Research Network, Sep 1, 2004

Cosmopolitan Civil Societies: An Interdisciplinary Journal, Jul 29, 2022

Harvard Civil Rights-Civil Liberties Law Review, 2022

Cosmopolitan Civil Societies: An Interdisciplinary Journal, 2022

SSRN Electronic Journal, 2020

This paper considers the right to be acknowledged as the first inventor of a new technology. Tech... more This paper considers the right to be acknowledged as the first inventor of a new technology. Technological inventions usually result from accumulative research and development, conducted by different people over decades and centuries. Moreover, sometimes several people arrive at the same invention almost simultaneously. Nevertheless, only one person is usually perceived as the "inventor," and gets all the credit and honor associated with the invention. Hence, the right to be considered as the first inventor can have profound significance for one's professional reputation and career. This paper focuses on the legal systems of Germany and the United States of America. These systems have developed in substantially different philosophical and cultural climates. Specifically, while the German legal system has been deeply influenced by Kantian and Hegelian thought, the US-American legal system has been inspired by the liberal ideas of John Locke, Adam Smith and others. These two schools of philosophical thought have different perspectives on the relationship between personal identity and work; while the German tradition emphasizes the deeply personal relation between individuals and their work, the Anglo-Saxon approach is, as a general rule, more instrumentalist and utilitarian. One way in which these differences express themselves is the different ways in which the right to be acknowledged as the first inventor is regulated. This right is deeply connected with one's identity as a professional, whether an engineer, technician, or scientist. On the other hand, this right does not necessarily have pecuniary significance. Hence, the protection of the right to be considered as the first inventor allows a glimpse into the different visions of identity and work found in these legal systems. This paper examines to what extent German and US-American legal systems recognize and protect the right to be perceived as the first inventor. It focuses on different aspects of this right, in the framework of patent law and beyond. The paper demonstrates that the two legal systems indeed differ profoundly in the ways they perceive and protect the right to be considered as the first inventor. True to its visions on professional dignity, German law carefully protects this right, independently from any pecuniary interests. In contrast, American law grants a remarkably weak protection to the right to be considered as the first inventor, focusing primarily on the monetary aspects of this right. Hence, one can here discover different visions of the role of individuals in society, and specifically of the role of individuals as creators and not just consumers. What is at stake here is the question of whether or not questions of honor, dignity, and symbolic property, above and beyond material benefits, are recognized as playing a role in the economic system.

The Protection of Non-Traditional Trademarks, 2018

Trademarks, or brands, are symbols whose initial purpose is providing information about the sourc... more Trademarks, or brands, are symbols whose initial purpose is providing information about the source of a product. Yet, with the course of time, high-end brands have developed into symbols providing information about their owner's status rather than about the sold goods. This phenomenon naturally attracts imitation and status cheating, offering new challenges to established trademark doctrines. This chapter outlines the different legal perceptions of imitation in the U.S. and Continental Europe, while placing these perceptions into broader cultural contexts. It then focuses on the U.S. legal view on imitation of trademarks that serve as status symbols, pointing out that this view is “non-traditional” in American context, in the sense that it is inconsistent with U.S. traditional cultural values.

Law & Social Inquiry, 2019

This article considers how legal systems capture different cultural perceptions of work in an ind... more This article considers how legal systems capture different cultural perceptions of work in an individual’s life. We inquire how two models—“human capital,” based on the works of Adam Smith; and “vocation,” based on the works of G. W. F. Hegel—are reflected in legal regulations and judicial rhetoric in the United States and Germany. Specifically, we examine how these two legal systems treat the practice of using personal names—the most direct referents to individuals’ identities—in business. We discuss three sets of cases: cases involving the use of personal names as trademarks, cases involving conflicts between parties with similar names, and cases involving the transfer of rights in personal names. The article demonstrates that the US legal system treats work as a commercial asset, as “human capital” in Smith’s sense, whereas German law perceives work as an integral part of one’s identity, echoing the Hegelian line of “vocation.”

Journal of Intellectual Property Law & Practice, 2009

... Email: katya{at}mscc.huji.ac.il. Next Section. Abstract. ... Thus, for example, nobody can re... more ... Email: katya{at}mscc.huji.ac.il. Next Section. Abstract. ... Thus, for example, nobody can register the words 'Michael Jordan', 'Salvador Dali', or 'NBA' as trade marks for products without the consent of the respective rights holders. ...

Law & Social Inquiry, 2011

People in all societies have a tendency toward magical thinking. This human inclination is extens... more People in all societies have a tendency toward magical thinking. This human inclination is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us successful, happy, and fulfilled. In this article, I suggest that such advertising creates a system of beliefs resembling a totemic religion. In this religion, brands perform the role of sacred objects. Trademark law initially aims at preventing consumer confusion. Yet, today, famous trademarks are extensively protected against nonconfusing associations. I argue in this article that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and trademark doctrines, such as the doctrine of dilution, I suggest that famous marks are legally treated as magical, sacred objects. This legal approach amounts to endorsing the commercial religion of brands.

This article deals with the cultural meaning of trade marks and the social significance of its le... more This article deals with the cultural meaning of trade marks and the social significance of its legal protection. Trade marks are symbols designed to enable the consumer to identify without confusion the source of various goods and services. Today, however, trade marks are much more than source identifiers. They are culturally meaningful signs. Thus, for example, the trade mark ‘Coca-Cola’, in addition to conveying information about the origin of soft drinks, is associated with freedom, youth, joy, and globalization. ‘Chanel’ stands not only for fragrances and apparel but also for exclusivity, intelligence, and European chic. The cultural meaning of the Olympic rings and Mickey Mouse, both registered trade marks, can hardly be grasped in a few words. Famous trade marks embed values, visions, and ideals we believe in. As cultural signs, they occupy a central place in our society. The cultural meaning of a trade mark is carefully built up by its owner by means of advertising and other ...

This paper examines the right of publicity in light of the basic rationales of Intellectual Prope... more This paper examines the right of publicity in light of the basic rationales of Intellectual Property law. It comes to the conclusion that the commercial value of celebrities' personas should not be protected.

German Abstract: Viele Marken stellen heute bedeutsame kulturelle Zeichen dar. Ihre Bedeutung wir... more German Abstract: Viele Marken stellen heute bedeutsame kulturelle Zeichen dar. Ihre Bedeutung wird durch assoziative Bindungen zu verschiedenen kulturellen Zeichen (Werten) wie Freiheit, Jugend, Gluck, erschaffen. Dieser Aufsatz befasst sich mit der Kehrseite dieses Prozesses. Er behauptet, dass als die Marken etwas von der Bedeutung verschiedener kultureller Zeichen in sich einschliesen, absorbieren auch die jeweiligen Zeichen den kommerziellen Nachgeschmack. Dieser Aufsatz analysiert die Rolle des Markenrechts im Prozess der Kommerzialisierung der Kultur. Er vergleicht dabei das deutsche mit dem US-amerikanischen Recht.English Abstract: This paper analyses the cultural role of trademark law in German and US-American legal systems.