Professor Mary LaFrance can’t make you love intellectual property law, but she makes it easy to understand. Articles such as “A Material World: Using Trademark Law to Override Copyright’s First Sale Rule for Imported Copies” take the mystery out of what may seem like a Byzantine subject area. “A Material World” has been chosen to be part of the 2015 issue of the Intellectual Property Law Review, but Professor LaFrance is already presenting her latest article under the working title “False Advertising Claims Against Product Names and Labels,” and her next casebook is set for publication in September.
“I try to pick topics that have not been extensively written about already,” said Professor LaFrance. “I try to carve out some new ground, and I try to write about topics that have great practical importance. And then I try to explain the issues as clearly as I can.”
Professor LaFrance’s path to IP law was elliptical but fairly predestined.
“It’s a field that’s actually quite hard to keep up with because things are changing all the time,” said the Duke University graduate. “I came into intellectual property because I had such diverse interests before I went into law school. I took a lot of classes in the sciences. I was an English major, and have always been a bit of a theater geek.”
She also watched television a lot, particularly commercials. At age 10 she wrote one for Band-Aid and sent her idea to Johnson & Johnson.
“I got a very nice rejection letter and a box of free samples,” recalled Professor LaFrance. “I’m fascinated by what makes the commercial effective. How do you get the consumer’s attention, and what message do they take away from the commercial? I was always impressed by very creative or memorable commercials, and I still am today.”
While LaFrance found IP was “a backwater” area of study when she attended law school, she gradually realized it wound all her interests into a single profession.
“Intellectual property does that because it involves science and technology, and the creative and performing arts. In this field, I’m able to enjoy all those areas of interest,” she said.
There were also few textbooks, which LaFrance would help rectify later via her prolific output. She’s written, co-authored and updated more than a half-dozen titles. Her latest is titled Entertainment Law on a Global Stage.
“I think what distinguishes it from other entertainment law casebooks is that it goes well beyond intellectual property issues, and it covers other issues like labor law, taxes, contracts,” she said. “It also looks at entertainment law from the perspective of international transactions and how differences in other countries can affect how one plans an entertainment transaction.”
“A Material World” is still making waves though and has been presented to audiences as far away as Hong Kong. Professor LaFrance had previously written about trademark owners trying to block parallel imports (domestic products meant for overseas sale) into the U.S. After the Supreme Court ruled that the “first sale” right of copyright law allows the importation of any lawfully made copy, Professor LaFrance analyzed how copyright owners could circumvent the ruling through trademark law.
“They were frustrated by the Supreme Court’s international exhaustion decision but then they discovered that they could frustrate parallel importers by using trademark law,” she said.
Material differences between copies, such as bonus content on DVDs or pagination differences in textbooks, can be created and exploited to invoke trademark protection.
“It’s not good for consumers if there are materially different goods floating around the marketplace that look very much alike,” Professor LaFrance said. “As I point out in the article, students could inadvertently buy a textbook that has the wrong pagination.”
Her latest article addresses false advertising, mainly through a case involving a Coca-Cola product designed to compete with Pom Wonderful’s flagship product made with 100 percent pomegranate juice. Coca-Cola’s cheaper product contained miniscule amounts of the pomegranate and blueberry juices prominently listed on its FDA-compliant label, leading Pom Wonderful to sue Coca-Cola under the federal Lanham Act’s false advertising provisions.
“The Supreme Court held that it is entirely possible for a label to satisfy the FDA requirements and still be misleading for purposes of the federal false advertising laws,” she said. “It makes me wonder what are all the other things the FDA allows on labels that we’ve never really thought about.”
