Law Commons^™

Revisiting Park ‘N Fly: In Pursuit Of Constraints On Trademark Bullies, Kenneth L. Port

Faculty Scholarship

The Supreme Court has been inextricably constraining the trademark right in the last 15 years. The Court first embarked in a wholesale expansion of the trademark right and now the Court is engaged in an effort to rein it back in.

The expansion started in 1985 with Park ‘N Fly v. Dollar Park & Fly. The Court there held that a descriptive and otherwise unenforceable trademark is made enforceable and the appropriate subject of an offensive action to enjoin a competing use if it is incontestable. The Court overruled Park ‘N Fly by implication with KP Permanent Makeup v. Lastings. …

Eighth Circuit Trademark Opinions, Kenneth L. Port

Faculty Scholarship

The Eighth Circuit Court of Appeals’ trademark jurisprudence has been truly fair and balanced since the 1946 passage of the Lanham Act. The court has created this fair and balanced jurisprudence by creating firm standards and sticking to them. Although not the most popular circuit in which to find a trademark case, the Eighth Circuit has kept a constant vigil to assure that trademark plaintiffs do not dominate over trademark defendants. This balanced approach to trademark law is consistent with the Minnesota Supreme Court, which recently held that “advertising injury” included trademark infringement, and therefore the defendant’s insurance carrier had …