Perspectives: ABA Annual & ABA Membership

One of the main benefits of the ABA is the opportunity to connect with lawyers and other lawyers-to-be. This happens organically at meetings, mixers, and other ABA events, and it results in a stronger, more collaborative legal community. The more law students involved, the better -- but students can only learn about this benefit if they experience it for themselves.

I saw this at Annual when I brought a classmate who was new to the ABA. “Wow!” he remarked, “I had no idea something like this existed!” He immediately saw the benefit of meeting other law students and branching out from our relatively small school. The students we met at Annual came from diverse backgrounds and had an endless array of interests and experiences. Each connection broadened the possibilities for his legal career, and he left with a new, part-time job for the upcoming school year.

When people get together at an event like Annual, they share ideas and realize new opportunities. This was the case for me when I met a fellow advocate of public interest law, David Kershaw (4th Cir. Lt. Gov. of Public Interest, Law Student Division). He and his colleagues organized the school-supply drive at Annual -- a new initiative that hopefully will become a trend -- and he had numerous ideas for boosting public interest work and volunteerism at law schools. I hope to incorporate his ideas as I plan activities for in my own area.

Concrete examples like these can go a long way in convincing our fellow students to join us at ABA events. They also help justify funding by proving the value of ABA membership.

If students at your school are hesitant to join the ABA, tell them to try one event. Bring them along and let them see for themselves what it’s all about. The more who join us, the more vibrant our legal community will be.

ABA Annual CLE Recap: Dress Up Your Brand: Litigating and Managing Trade Dress Portfolios Across Different Industry Sectors

#CLE Recap:Dress Up Your Brand: Litigating and Managing Trade Dress Portfolios AcrossDifferent Industry Sectors

The adage “do not judge a book by its cover” emphasizes the importance of not drawing conclusions based on superficial impressions. But industry leaders recognize that consumers often make purchasing decisions based on their initial impressions of a product or service. As a result, many organizations invest substantial resources in protecting the trade dress associated with their goods.

The Section of Intellectual Property CLE program “Dress Up Your Brand: Litigating and Managing Trade Dress Across Different Industry Sectors” provided attendees with practical tips on how to register and enforce trade dress. Douglas Rettew, Partner and Chair of Finnegan’s Trademark and Copyright Group, began the program with an overview of trade dress, which refers to the total image, or “look and feel,” of a product that is eligible for common law and federal trademark protection.   

Douglas Rettew providing an overview of trade dress. Panelists (from left to right): Kate Asher, Alisa Hurlburt, and Sarah Lockner. 

One of the panelists, Sarah Lockner, Senior Trademark and Division Counsel with 3M Company, discussed how trade dress protection differs among 3M’s various divisions, which include Health Care, Consumer, and Electronics & Energy. As an international company, 3M must enforce and protect its trade dress in a number of countries. To receive protection, trade dress must acquire secondary meaning and distinctiveness such that consumers associate the good with one producer or source by virtue of the good’s appearance. Outside of the United States, as it can take time for goods to acquire secondary meaning in the marketplace, companies may seek to invoke copyright protection of a good’s appearance if the product’s trade dress is not yet eligible for protection.

While trade dress can be an effective form of protection for an owner’s intellectual property, Kate Asher, Senior Intellectual Property Counsel at Philips, which produces goods in the Healthcare, Consumer Lifestyle, and Lighting sectors, emphasized the importance of pursuing an IP strategy that directly reflects an organization’s business strategy.  Specifically, Asher recommended that companies consider a number of factors, including the organization’s objective for obtaining intellectual property protection, costs, and use, in determining the appropriate methods of protection for certain goods. For example, if a company is continually revising a product’s style and design, seeking trade dress protection may not be effective because it is unlikely that the trade dress will acquire the requisite distinctiveness. Accordingly, some companies will register design patents to protect the appearance of their goods and obtain immediate exclusivity. If the product remains in the marketplace long enough to obtain secondary meaning, then the company has the option to register for trade dress protection, which may result in products receiving substantial protection under both patent and trademark regimes. 

In the cosmetics, skin care, and fragrance industries trade dress is vital, and counterfeiting is a prevalent issue. Alisa Hurlburt, Assistant General Counsel at Elizabeth Arden, Inc. discussed ways in which Elizabeth Arden enforces and protects the trade dress of its products, including its distinctive fragrance bottles. By showing a number of side-by-side comparisons of Elizabeth Arden products and counterfeits attempting to mimic the overall look and feel of the products’ appearances, Hurlburt conveyed the importance of trade dress enforcement and the issues that counterfeiting poses for consumers.  Cosmetics and fragrance producers invest money and resources in advertising to develop their brands, and counterfeiters capitalize on producers’ investments, which results in brand deterioration and revenue losses. Organizations may produce products that are their “impression” of well-known fragrances and luxury goods, but in doing so companies must be very cautious that they are not deceiving consumers. 

Consumer opinion is particularly relevant in enforcing trade dress and litigating trade dress cases.  Even before the trial stage, it may be advantageous for brands to conduct consumer surveys as these tools are vital to mark enforcement and protection. Consumer surveys must include many questions that connect the good to the source such that the survey results reflect that consumers associate the product with one source. Although protecting and enforcing trade dress is a time and labor-intensive process, the revenue benefits, brand development, and potential improvements in market share frequently justify the costs. 

By: Melissa Lauretti, Lt. Governor of Programming

Perspectives: ABA Annual CLE: The Need for Consumer Education and Transparent Communication in Combating the Proliferation of Counterfeit Products

            During the Annual Meeting, the ABA Section of Intellectual Property Law sponsored a CLE program titled “Buyer Beware: Dangerous Counterfeits in the US,” which discussed the problems that counterfeit goods pose to public health and safety and highlighted the steps that the government and private actors have taken to protect the intellectual property of United States’ companies. In my opinion, one of the most important takeaways from this session was that consumers need to educate themselves about the dangers of counterfeit products and brands must not avoid discussing the presence of counterfeit goods in their industries to preserve their market share. Overall, it appears that open and transparent communication about counterfeiting would be more effective in preventing injuries and deaths from counterfeit products than shying away from dialogues about this controversial topic.

            As one speaker stated, “if you haven’t found counterfeit products in your supply chain, you’re just not looking.” Not only are there the traditional counterfeit luxury products, such as designer handbags, but there are also counterfeit electrical wires, airbags, chainsaws, and pharmaceuticals. Given that the majority of the population would not initially think that electrical wires and airbags could be counterfeited, it is critical to convey this information to consumers. This is because consumers need to be able to identify the sometimes minor details of goods that differentiate legitimate products from fraudulent items as this attention-to-detail could ultimately save their lives. To aid in this endeavor, some brands are enhancing their trade dress or molding their trademarks into their products because these are more difficult to replicate than trademarks that are applied to goods using silk screen printing.

            One industry that is rife with fake products that can kill consumers is the pharmaceutical sector. Online pharmacies are increasing in popularity as they provide convenience and anonymity, but, according to the National Association of Boards of Pharmacy, only three percent of the more than 10,000 online pharmacies appear to be legitimate. Related to this point, consumers may be purchasing pills that only look like their prescriptions; these pills may not even contain the requisite active pharmaceutical ingredients. Moreover, it is shockingly simple for counterfeiters to mass produce pills in their own labs; counterfeiters simply need a blender, ingredients, a garage, and a pill press, which can cost between $30,000 and $40,000, and then the counterfeiters can produce upwards of 50,000 pills per month by hand. Thus, it is imperative that consumers know the source of their prescriptions, particularly if people are using the Internet to purchase their medications. While many people may rely on the URL or IP address of the online pharmacy to discern the source of the products, this is not always an effective tactic as online pharmacies with Canadian URLs and IP addresses may not actually be based in Canada. Accordingly, consumers may ask: is there any guaranteed way to ensure that I am purchasing safe and legitimate products online? Presently, the answer to that question may be “no.”

            Nevertheless, there is hope as the United States government has increased its oversight of imports of counterfeit goods and its prosecution of counterfeiters. Specifically, through the efforts of the Intellectual Property Rights Center, twenty-one federal and international agencies are collaborating with industry leaders and law enforcement in order to stop the importation of counterfeit goods, identity the source of counterfeit goods, and educate the public and private actors about how to identify counterfeit products. In addition, the United States government is also attempting to shut down domain names and websites associated with the sale of counterfeit goods, but this has proven difficult to do utilizing the criminal system. While counterfeiting appears to be a central priority of the federal government, it is also imperative that private industries and consumers actively participate in the enforcement process. 

By: Melissa Lauretti, Lt. Governor of Programming

Perspectives: Attending the ABA Annual Meeting

             As I stood on the metro on the way to Day One of the Annual Meeting, burning hot in a multi-layered suit and with a bag of heavy books over my shoulder, I stared at my iPhone calendar and thought to myself, I don’t have much time. As a student of Northeastern University School of Law, known for its year-round rotational schedule that places students in class over the summer and on externships throughout the school year, I was among the only students at the meeting with a final exam the next morning, another one in four days, and a paper due in a matter of hours. This was not a friendly coincidence.

            Nonetheless, as I continued looking at my calendar, I quickly remembered why I was putting myself through such a scheduling nightmare. Between all the study groups, cram sessions, and exams were a plethora of fun and amazing events that any law student would love: meetings with judges, cocktail receptions with the Young Lawyers Division, mixers with prominent legal professionals across the country, and a seemingly endless list of free CLE programs discussing various topics of law that fascinate and interest me. No, I may not have much time, I thought to myself. But it’ll be worth it.

            I arrived at the Boston Park Plaza, checked in at the registration desk, tried to stuff all the free stuff they gave me into my book bag, and headed to the Annual Meeting Orientation.  I stepped into the enormous ballroom full of law students from across the country, and in a matter of moments I felt connected to a profession and a cause so much greater than myself.  Later that night was the first mixer of the weekend, where members of the Law Student Division meet and network with attorneys from the many sponsoring divisions over amazing food and free drinks.  It’s amazing how many people I met in those few hours, and the insightful conversations we had and the joyful laughs we shared remain among my fondest memories of the weekend.

 

 

          But this was only the beginning. The next few days were full of other great events: meeting with other law students to discuss initiatives that could benefit students across our Circuit; visiting the ABA Expo, where every booth had something great to share; representing my law school at the Division Assembly, where I voted on resolutions that are crucial to the future of legal education; attending the Judicial Division Council meeting, where I spoke with some of the most prominent judges in the country about how they can connect with law students; and so much more.

I could go on, but the bottom line is this: the Annual Meeting gave me the chance to meet judges and attorneys who have encouraged me in tremendous ways, to speak with other law students who will lead this profession in the future, and to experience what it truly means to engage with our work and take pride in the paths we’ve chosen. While it was a pain to juggle final exams in the midst of it all, it was well worth it in the end.

Henry H. Tran, Northeastern University School of Law

Executive Lt. Governor, 1st Circuit & LSD Liaison to the Judicial Division Council

Snippets from the ABA Annual Meeting

The ABA Annual Meeting was held this year in Boston, MA.

Your First Circuit Governor and her Lt. Governors were in attendance for the weekend of events which featured excellent events, numerous networking opportunities, and interesting and informative CLEs.

In case you weren't able to attend this year, or if you ran into the problem I had - there were just too many events to choose from - your Lt. Govs. have compiled articles on the CLEs they attended. 

Please see the following posts and pictures detailing just some of the great CLEs at Annual! We hope you will all consider attending next year!

Hello First Circuit! Inaugural Blog Post

Welcome to the new First Circuit Blog!

In an effort to modernize our communication efforts within the circuit, we have decided to begin a blog. The purpose of this blog will be to detail events and happenings within the First Circuit, share information that is important or interesting to First Circuit Students, and create a medium for exchange between our students. 

Please feel free to submit posts that you feel would be interesting and/or useful to your fellow students. You can use the Contact Links on the homepage, or email it to abalsd1ltg@gmail.com.

Since we are very new, please feel free promote this blog to your fellow students and add our link to your blogs and other social media!

Feedback and suggestions are also appreciated! 

Best of luck to everyone for the school year ahead!

- Nadine
First Circuit Lt. Gov. of Membership & Communications