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1AC McDowall 15 – Krystil McDowall (New York Attorney, specializing in Intellectual Property Law), Spring 2015, "A Critical Look at ‘Use’ Under the Landham Act," New York University Journal of Intellectual Property and Entertainment Law, https://jipel.law.nyu.edu/wp-content/uploads/2015/05/NYU_JIPEL_Vol-4-No-2-2_McDowall_UseUnderLanhamAct.pdf /$antiP/

Critics may suggest that a minimal use approach would stem the incentive to compete embedded in the current use standard and that greater competition is fostered under the current standard by encouraging mark owners to establish themselves as quickly as possible. But this argument must be balanced against the fact that the current use standard systematically works against certain segments of the market, such as trademark owners who are small businesses or start-ups who are simply not able to quickly establish themselves. Adopting the minimal “single sale will suffice” standard of Australian law will allow American trademark owners a period of time after registration in which to establish and grow their business, without requiring immediate success judged by sales volume and significant advertising and marketing budgets. One benefit of this type of qualitative approach is that it fosters greater inclusiveness, which would better encompass the vast crosssection of commercial enterprises within the American landscape. It also means fewer federal registrations would be invalidated. Additionally, this type of approach would provide greater certainty to all trademark owners as businesses would be able to invest in a mark with greater certainty in knowing quality of use, not quantity, is the yardstick upon which a federal registration is measured. A legislative change to a qualitative, bona fide, minimal use focus thereby fosters greater equality.

1AC McDowall 15 – Krystil McDowall (New York Attorney, specializing in Intellectual Property Law), Spring 2015, "A Critical Look at ‘Use’ Under the Landham Act," New York University Journal of Intellectual Property and Entertainment Law, https://jipel.law.nyu.edu/wp-content/uploads/2015/05/NYU_JIPEL_Vol-4-No-2-2_McDowall_UseUnderLanhamAct.pdf /$antiP/

Many start-up and small businesses have sporadic initial sales patterns for a number of justifiable reasons, including a lack of resources or expertise (if the mark owner is new to the industry) or lack of capital (which may prevent the mark owner from obtaining legal counsel). It follows, then, that the continuous use standard is prejudiced in favor of those brands that are already strong, or have sufficient capital, over those that are starting out. In this way, the continuous use standard under the Act is unequal in its application as the standard is biased in favor of the strong. Where de minimis use is in issue, the law says “might is legally right,” or at least, “legally better.” As a result, the continuous use standard deprives some new or startup businesses from growing a burgeoning brand into a thriving core asset.

The U.S. Patent and Trademark Office saw record numbers of new trademark applications filed in 2021.During 2021, the USPTO reported over a 25% increase in applications. See USPTO Performance and Accountability Report 2021, available here. Such a steep increase is thought to come from both foreign and domestic filings, with those from China outpacing growth from both U.S. applicants and applicants from other countries.

As a result of the surge in new filings, there is now a backlog of trademark applications causing significant delays at the USPTO. Applicants filing in the United States should expect longer wait times for the initial processing and examination of their application, subsequent processing of responses to Office Actions, and the review of post-registration filings.

Trademark wait times at the USPTO are at an all-time high, with the backlog being blamed variously on the pandemic, a shrinking federal government workforce or rampant fraud committed by opportunistic filers.

While this is naturally a point of stress for practitioners and applicants alike, it can be leveraged with smart, strategic thinking.

This is a common question from brand owners, and an important one. After all, registering a trademark is a significant step in protecting a brand.

Over the past few years, it has been taking longer and longer to get a trademark registration from the United States Patent and Trademark Office (“USPTO”).

The frustration being caused by the backlog is also being felt at the USPTO as well. As WTR recently reported, a former examining attorney revealed that “demoralisation has become a big issue for PTO examiners” – with three key issues raised that the registry must address: rising to the logistical challenges imposed by covid-19 restrictions, managing the ongoing delays (and concerns over fraud) caused by the influx of trademark applications, and maintaining (or raising) staff morale. Positively, though, the source said that USPTO management “are certainly cognisant of how bad it has gotten”.

Indeed, that awareness of the issue was confirmed through a recent blog post penned by USPTO trademark commissioner David Gooder. In it, he explained how trademark applications “have surged to unprecedented levels” since late last year – acknowledging that the “backlog is increasing”. He added: “As a result, applicants may have to wait longer for initial processing of their application, receiving an office action, processing of responses to office actions, and reviewing of post-registration filings.”

The USPTO trademark backlog reaches 900,000 classes for the first time. Follows massive rise in new applications being received by the registry. Experts reveal the impact the increased examination wait time is having.

The backlog of pending trademarks at the USPTO has surpassed 900,000 for the first time, highlighting the monumental challenge facing the registry. In response, USPTO trademark commissioner David Gooder is pledging “increased productivity” to tackle the backlog – although experts tell WTR that, while action may be being taken, “it is not clear that the numbers are getting better”.

The democratic peace—the observation that democracies are less likely to fight each other than are other pairings of states—is one of the most widely acknowledged empirical regularities in international relations. Prominent scholars have even characterized the relationship as an empirical law (Levy 1988; Gleditsch 1992). The discovery of a special peace in liberal dyads stimulated enormous scholarly debate and led to, or reinforced, a number of policy initiatives by various governments and international organizations. Although a broad consensus has emerged among researchers regarding the empirical correlation between joint democracy and peace, disagreement remains as to its logical foundations. Numerous theories have been proposed to account for how democracy produces peace, if only dyadically (e.g., Russett 1993; Rummel 1996; Doyle 1997; Schultz 2001).

At the same time, peace appears likely to foster or maintain democracy (Thompson 1996; James, Solberg, andWolfson 1999). A vast swath of research in political science and economics proposes explanations for the origins of liberal government involving variables such as economic development (Lipset 1959; Burkhart and Lewis-Beck 1994; Przeworski et al. 2000; Acemoglu and Robinson 2006; Epstein et al. 2006) and inequality (Boix 2003), political interests (Downs 1957; Bueno de Mesquita et al. 2003), power hierarchies (Moore 1966; Lake 2009), third party inducements (Pevehouse 2005) or impositions (Peceny 1995; Meernik 1996), geography (Gleditsch 2002b), and natural resource endowments (Ross 2001), to list just a few examples. Each of these putative causes of democracy is also associated with various explanations for international conflict. Indeed, some as yet poorly defined set of canonical factors may contribute both to democracy and to peace, making it look as if the two variables are directly related, even if possibly they are not.

Trademarks protect brands rather than inventions; they signal product quality and help consumers to differentiate between the products of a firm and its rivals (Besen and Raskind, 1991; Landes and Posner, 1987). Small- and medium-sized enterprises (SMEs) are more likely to engage in trademarking than larger firms (Greenhalgh and Rogers, 2010; Rogers et al., 2007); they differentiate their products in niche markets thus, strengthening their branding (Block et al., 2015). It is also less costly and less complex to register trademarks, which arguably signals quality to equity funders, and fosters partnerships and strategic alliances (Block et al., 2015; Motohashi, 2008). We argue that the effects of trademarks on performance are likely to be positive (Greenhalgh and Rogers, 2012; Sandner and Block, 2011); in support, Srinivasan et al. (2008), Jensen et al. (2008) and Helmers and Rogers (2010) find that small firm trademarks reduce their exit rate. Therefore, H2 states that, for start-ups, a positive relationship exists between trademarking and performance.

First, Beebe and Fromer’s argument lacks empirical support for their assumption that depletion and consumption force entrants to bear significant financial burdens. Beebe and Fromer cite news articles that quote entrepreneurs who have trouble naming new firms or products as their primary evidence.26 But this evidence alone cannot show how trademark depletion actually affects the average costs of entry. There might be ways to at least approximate the financial costs: one branding guide estimates the low-end cost of name development and logo creation at $13,500.27 What remain untested are the different financial costs that may result depending on the particular trademark class, the size of the market entrant, and the depletion or congestion level of the class.

Further empirical research would likely fill in these gaps in the research. For example, interviews with branding agents (or branding scholars) might clarify how much of these trademark-related financial costs to entry is driven by searching through existing marks, whether the cost is higher in more depleted classes, and how it has changed over time. Empirical research should also take into account the possible ameliorating effect of technological changes, including the increasing ease of using search engines to quickly and cheaply test the distinctiveness of potential marks.28 In addition, technological developments have reduced branding-related entry costs by making it easier to search existing registered marks29 or pay for low-cost searches,30 and by allowing firms to crowdsource logo design,31 connect online with low-cost freelance designers,32 or design their own logos.33

Offensively, firms patent to protect their inventions against imitation (Blind et al., 2006). Defensively, firms patent to prevent rivals leapfrogging them. Patents are also sources of licensing income and are also useful for international expansion and enhancing the firm’s technological image/reputation (Blind and Thumm, 2004). Unfortunately, these benefits apply more to large firms than start-ups; Torrisi et al. (2016) for example, found that small firms were less likely to patent or to inward license. Furthermore, such firms face higher fixed cost of patenting, and receive lower benefits related to disadvantages in enforcing legal rights (Blind et al., 2006). This is not surprising considering that small start-ups typically are resource constrained (Agostini et al., 2016); they have fewer financial resources (Hottenrott et al., 2016), less organisational slack (Leyva-de la Hiz et al., 2019) and fewer organisational capabilities (Kim et al., 2018) to exploit patents. Therefore, patenting is likely to have a negative effect on the performance of small firms; thus, informal mechanisms of IP protection are typically used as alternatives, and to better effect (Kitching and Blackburn, 1998). Given findings of a negative (Hall et al., 2007) or insignificant performance impact (Artz et al., 2010; Suh and Hwang, 2010) of patents on small firms, we hypothesise (H1), that start-ups experience a negative effect upon performance from using patents.

Most prior work on the role of IP in VC funding has focused on patents. Start-ups filing patents are more likely to receive VC funds (Audretsch et al., 2012; Cao and Hsu, 2011; Engel and Keilbach, 2007; Haeussler et al., 2009) and be valued more highly by VCs (Baum and Silverman, 2004; Hsu and Ziedonis, 2008; Lerner, 1994). Additionally, start-ups with patents demonstrate superior performance throughout the VC cycle compared with other start-ups, in terms of both their survival rate and the amount of funding that they receive (Cao and Hsu, 2011; Mann and Sager, 2007). From these studies, whether VCs value patents as a signal of the start-up's quality (the signaling value of patents) or as a property right (i.e., the right to exclude others from making, using, offering for sale, or selling the patent's underlying invention) (the protection value of patents) remains unclear. If patents have a signaling value, VCs would attribute higher quality to a start-up with patents because the quality of the start-up and its technology are unobservable. In a recent study, Hoenig and Henkel (2012) use a conjoint-based survey of 102 European VCs to disentangle these two effects and find that patents primarily affect VC decision making through their function as an exclusion right. In another study, Audretsch et al. (2012) find that VCs and business angels (BAs) only value patent applications as a quality signal if prototypes are also available. Audretsch et al. (2012) argue that the signaling value of patents is contingent on patent feasibility. Although the patent–VC interface has received considerable attention in the literature, little is known about the role of trademarks in VC funding. Only one study (De Vries et al., 2013) that we identified specifically addresses the relationship between VCs and trademarks, suggesting that VC investors promote trademarking when investing in a start-up. The paucity of research on trademarks in VC funding is surprising given the strong increase in trademark applications in recent years (OHIM, 2011; Sandner and Block, 2011; USPTO, 2012b).

A trademark is defined as “a distinctive sign, which identifies certain goods or services as those produced or provided by a specific person or enterprise” (World Intellectual Property Organization (WIPO), 2011). A trademark is typically a word, phrase, symbol, or logo, but it can also reflect a color, sound, or smell as long as a graphical representation is feasible (Mendonça et al., 2004). Trademarks allow consumers to distinguish a firm from its competitors. Additionally, trademarks provide a legal basis from which a firm can develop brand security for future marketing investments (Economides, 1988; Mendonça et al., 2004; Phillips, 2003). Similar to patents, trademarks provide exclusion rights that secure not only a competitive advantage but also the identity of the start-up in its relationship with its customers (Chasser and Wolfe, 2010; Mendonça et al., 2004). While patents relate to a start-up's technological base, trademarks reflect the start-up's preparedness, its plan to engage in marketing activities and its willingness to protect its marketing assets (Brahem et al., 2013; Krasnikov et al., 2009; Sandner and Block, 2011). Similar to patents, with regard to VC financing, trademarks may provide both signaling value and protection value for start-ups. That is, VCs may value trademarks as a signal of the quality of the start-up (signaling value) or as an intellectual property right to exclude rivals from using the start-up's signs, names, logos, and so forth (protection value).

Except for Antarctica, about 70 seagrass species can be found in coastal and marine environments around the world. Often forgotten, seagrasses provide critical ecosystem services which rival those of coral reefs and mangroves. They offer critical shelter, nursery, and foraging grounds for an incredibly diverse community of ocean life. They also stabilize sediments, store carbon, absorb excess nutrients and produce life giving oxygen. However, seagrass meadows are disappearing at an alarming rate of 0.9% to 7% per year because of human activity such as pollution, dredging, anchoring and coastal development. With climate change impacts expected to exacerbate the situation, it is becoming urgent to understand how seagrass communities will be affected.

In order for CCS to deliver a lasting benefit to the climate, the vast majority of sequestered CO2 must remain underground permanently. Geological formations proposed are sub-seabed and saline aquifers. The IEA says that depleted oil and gas reservoirs would be the most likely candidates for initial storage operations because of both their geology and proximity to industrial development.

The problem with IEA’s assertion is it is too convenient for expanding CO2-EOR operations. In addition, the multiple bore holes and wells drilled in them to find and extract oil and gas further increase the risk of leakage. The IEA also admits that, “[t] he long-term storage integrity of oil fields that have been exploited with multiple wells has yet to receive serious scientific investigation.”108

On this score, the constraints would indeed be few: ample geological stores wreathe the planet, not least its two largest economies, the US and China. The current consensus in the literature and ‘space’ alike is that storage capacity does not pose a limit to sequestration. There is enough room in the crust to fill it several times over with the stones from the past two centuries. But, again, getting the CO2 into this state would not come without energy expenditure; depending on a number of variables – notably the need to grind or crush or otherwise treat the rock to make it more absorbent – mineralisation could add its own hunger to the general demand.114 DAC plants would be built with steel and cement. They would require minimal land compared to BECCS, but build tens of thousands of them and they will certainly leave an imprint. Count in the land required to generate the required solar or wind energy, and the imprint quickly multiplies.115 Where would all the sorbents come from? Some are currently made with feedstock from fossil fuels; others are derived from renewable materials; none involve rare elements, but much of the minutiae is kept in the dark from science and society, as the start-ups obtain a competitive edge from the sorbents and jealously guard their secrets. How will they be disposed of when no longer recyclable? Heaps of those chemical sieves might be left lying around. When manufactured out of brine, they generate chlorine as a byproduct: how would several gigatons of that poison gas be dealt with? It became infamous as a chemical weapon courtesy of Fritz Haber and I.G. Farben. Ineluctably, an infrastructure on this scale – planetary by design and definition – will produce side effects in the biosphere.

Our overall policy finding is that the scientific literature does not support the use of public funds to subsidize the commercial development and deployment of ICR, especially those methods that have been shown to emit more CO2 than they sequester, thereby adding to the existing stock of atmospheric CO2. In specific, these methods are (1) any process in which captured CO2 is used for enhanced oil recovery (EOR); and (2) direct air capture (DAC) when fossil fuel=powered. Furthermore, the current ICR path disregards known risks of chemically intensive, industrial carbon removal, and the adverse side effects and subsurface storage uncertainty at scale.

It is troubling that the biophysical issues of operating ICR at scale are insufficiently addressed or analyzed in the ICR literature. Legislators, too, have neglected to address the biophysical requirements for and consequences of operating ICR at climate-significant scale. As DAC increasingly takes prominence among carbon removal advocates, it is problematic that the issues of DAC energy consumption are short shifted. Scientific and technical papers increasingly acknowledge that fossil fuel-powered DAC is thermodynamically counterproductive, yet these same papers fail to tackle the consequential question of whether renewable energy should be funneled to DAC rather than used to directly supply energy for buildings and transport. Virtually ignored in legislation, and unacknowledged in many reports advocating CCS/CCUS and DAC, are the massive land requirements for DAC operation as well as land requirements (acquisition and occupancy) for pipelines for CO2 transport. Also slighted or ignored in both policymaking and most of the literature are other biophysical costs like the prodigious amount of chemicals needed for direct air capture (DAC) to operate at scale. In addition, one must consider the adverse biophysical impacts of massive CO2 transport and storage operations and infrastructure, including potential fugitive emissions, groundwater contamination, air pollution, and earthquakes. Lastly, both legislation and most of the literature ignore the “wartime level of effort” that would be required to scale-up to a climate-significant level of operation.

We know that H-1B workers are not being used to bring in the “best and brightest.”

In dozens of cases – Disney, The Fossil Group, Toys R Us, New York Life, Northeast Utilities, etc. – American workers trained their replacements. The American workers were obviously more skilled. The American worker was the trainer, possessing more knowledge and skills, and the H-1B worker was the trainee.

The “H-1B discount” occurs through several mechanisms and the exact wage savings that is achieved is difficult to accurately estimate; a 20% savings is a reasonable estimate of the combined effect of the large supply of guestworkers (H-1B, L, OPT) used by the IT industry. The savings take the forms of (1) a direct savings of lower pay for a guestworker as compared to a domestic worker; (2) the “chilling effect” of having a large supply of guestworkers that constrains current workers from requesting wage increases or for employers to increase wages to retain workers (i.e., because incumbent workers are easily replaced with the large available supply of guestworkers; (3) replacing older, higher paid workers with younger, lower paid workers. The wage-depressing effects of H-1B and other guestworkers is observed directly (from fieldwork) and from observing no increase in average wage levels for the past 10 to 18 years despite claims of shortages and difficulties in hiring. As a point of comparison, petroleum engineers were in great demand and the observed starting salaries jumped from $43,674 in 1997 to $50,400 in 1999, $55,987 in 2003, $61,516 in 2005 (Bureau of Labor Statistics, 2004, 2006), and $86,220 in 2010 (National Association of Colleges and Employers, 2010). That is, in petroleum engineering, where there was demonstrated high levels of demand by industry, starting salaries doubled.

In contrast, multiple studies show firms pay H-1B workers less1 (e.g., Matloff, 2013, examining a wage analysis conducted by Kerr (2013) found using a foreign STEM worker led to “…a 17% drop in original wage”; Matloff, 2013; 225) and that firms using H-1B workers have lower average payroll costs. 2 The combined effect is difficult to precisely calculate, but an average payroll savings of 20 percent over the past decade is a conservative estimate.

The U.S. STEM workforce numbers about 7.5 to 8 million, or about 5 percent of the workforce. The computer occupations comprise about half (48.5%) of the STEM workforce at 3.7 to 4 million workers. If we use the BLS projections for IT job growth, which is comprised of replacements (for those leaving the workforce because of retirements and job separations—layoffs and quits) and growth of the workforce, the IT industry needs approximately 124,000 new workers each year. Mircosoft’s Washington representative and counsel Brad Smith (in his Congressional testimony) uses an earlier BLS projection of an annual increase of 120,000, and the trade organization code.org, echoed by the Computing Research Association, use 150,000 as the expected annual demand for new IT workers (Harsha, 2014). Smith and these associations then assert that the BLS workforce growth estimates represent the demand for computer science graduates. Matched against annual computer science graduation of 67,000 in 2012, the claim of a supply shortage is made. It is these statistics and claims that are repeated widely.

However, such claims misinterpret the BLS workforce projections for the computer occupations in asserting it is a demand for computer science graduates. For example, Daniel Costa conducted a detailed study of these computer science shortage claims by Microsoft and other companies and shows the evidence does not support these claims because, among other reasons, “[i]t is a well-known fact that computer science graduates are not the only source of new hires in computing….less than one-fourth to less than one-half of workers in computing occupations have a computer science degree” (Costa, 2012). In fact, of those currently in computer occupations, only 14 percent hold a computer science degree and another 4 percent have electrical engineering (EE) degrees. Since that reflects the education level of the entire current IT workforce, of all ages, it could understate the current cohort education levels.

Congress, beware: False alarms are being raised to urgently authorize the transfer of billions in taxpayer funds by year’s end to pharmaceutical corporations under the guise of addressing the public health challenge of antimicrobial resistance.

The narrative behind this is now a well-used playbook: 1) start off with a story about a sick patient with a bacterial infection, 2) voice concern that existing antimicrobial treatments may not work, 3) point to the cause of having no effective options for treatment as being due to a lack of financial incentives for manufacturers to develop novel antimicrobials and 4) conclude that the solution to this problem is throwing money at it by demanding that Congress immediately pass the Pioneering Antimicrobial Subscriptions To End Up surging Resistance (PASTEUR) Act.