Kenneth L. Port

The Illegitimacy of Trademark Incontestability

The concept of incontestability in American trademark law has caused great confusion ever since its adoption as part of United States trademark law in 1946. This Article is first a study of the rational basis for incontestability in American trademark law. The role of incontestability in the larger regime of American trademark law is established in order to understand incontestability as it fits within the history of the common law of trademarks. This is fundamental in order to understand the significance of the thesis that incontestability is illegitimate. Next, acquisition of incontestability is presented in order to show how simple it is to attain incontestable status and to put in perspective the resulting advantages. This also demonstrates the fact that incontestability is a radical departure from the common law of trademarks. This Article concludes with an analysis of trademarks themselves as property. Because the concept of incontestability was adopted without reference to the common law, and because it attempts to create property rights in a trademark itself, this Article concludes that incontestability is jurisprudentially illegitimate and should be repealed.

Copyright Law Basics for the Nursing Professional: Part 2: Protecting Your Work.

This article is a continuation of the discussion of Copyright Law (found in JNPD 31:5) as it applies to nursing professionals. This part focuses on the definition of “work made for hire” and how nursing professional development specialists can both protect and share their own work. Many nurses assume that they own the works they create, but authorship is not necessarily the same as ownership. Misunderstanding copyrights could put one’s job and hard work at risk!

Copyright Law Basics for the Nursing Professional: Part 1: Using the Work of Others.

This article covers the basics of Copyright Law as applicable to the use of protected resources and the sharing of information by nurse professionals. It explores frequently cited justifications for copyright violation, including the doctrine of Fair Use and the Technology and Copyright Harmonization Act. It also discusses why those justifications may or may not apply to the nurse professional who teaches in a clinical setting or at a conference. (See CE Video, Supplemental Digital Content 1, http://links.lww.com/JNPD/A2)