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Full-Text Articles in Law
Testing Modern Trademark Law's Theory Of Harm, Mark Mckenna
Testing Modern Trademark Law's Theory Of Harm, Mark Mckenna
Mark P. McKenna
Modern scholarship takes a decidedly negative view of trademark law. Commentators rail against doctrinal innovations like dilution and initial interest confusion. They clamor for clearer and broader defenses. And they plead for greater First Amendment scrutiny of various applications of trademark law. But beneath all of this criticism lies overwhelming agreement that consumer confusion is harmful. This easy acceptance of the harmfulness of confusion is a problem because it operates at too high a level of generality, ignoring important differences between types of relationships about which consumers might be confused. Failure to differentiate between these different relationships has enabled trademark …
Teaching Trademark Theory Through The Lens Of Distinctiveness, Mark P. Mckenna
Teaching Trademark Theory Through The Lens Of Distinctiveness, Mark P. Mckenna
Mark P. McKenna
This contribution to the annual teaching edition of the Saint Louis University Law Journal encourages teachers to begin trademark law courses using the concept of distinctiveness as a vehicle for articulating producer and consumer perspectives in trademark law. Viewing the law through these sometimes different perspectives helps in approaching a variety of doctrines in trademark law, and both perspectives are relatively easy to grasp in the context of distinctiveness.
Intergenerational Progress, Brett Frischmann, Mark P. Mckenna
Intergenerational Progress, Brett Frischmann, Mark P. Mckenna
Mark P. McKenna
This Essay prepared for the Wisconsin Law Review’s symposium on Intergenerational Equity lays the groundwork for a broader understanding of the goals of IP law in the United States by arguing that there is room for a normative commitment to intergenerational justice. First, we argue that the normative basis for IP laws need not be utilitarianism. The Constitution does not require that we conceive of IP in utilitarian terms or that we aim only to promote efficiency or maximize value. To the contrary, the IP Clause leaves open a number of ways to conceive of Progress; courts’ and scholars’ overwhelming …
What's The Frequency, Kenneth? Channeling Doctrines In Trademark Law, Mark Mckenna
What's The Frequency, Kenneth? Channeling Doctrines In Trademark Law, Mark Mckenna
Mark P. McKenna
This paper was published as a chapter in Intellectual Property and Information Wealth (Peter Yu, ed., Praeger 2007). The chapter describes several doctrines that courts have developed to limit the scope of trademark protection where there is a risk of interference with the patent or copyright schemes. It also suggests that courts have in some cases overemphasized the subject matter of protection and underemphasized parties' ability to use trademark law to capture the types of economic benefits for which patent and copyright protection are presumed necessary.
The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna
The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna
Mark P. McKenna
This contribution to the Washington University School of Law conference on the Rehnquist Court and the First Amendment addresses the Rehnquist Court's view of the role of the First Amendment in intellectual property cases. It argues that, while the Rehnquist Court was not eager to find a conflict between intellectual property laws and the First Amendment, there is reason to believe that it set the stage for greater First Amendment scrutiny of intellectual property protections. At the very least, the Court left that road open to future courts, which might be inclined to view intellectual property more skeptically.
Intellectual Property, Privatization And Democracy: A Response To Professor Rose, Mark P. Mckenna
Intellectual Property, Privatization And Democracy: A Response To Professor Rose, Mark P. Mckenna
Mark P. McKenna
No abstract provided.
The Right Of Publicity And Autonomous Self-Definition, Mark P. Mckenna
The Right Of Publicity And Autonomous Self-Definition, Mark P. Mckenna
Mark P. McKenna
Legal protection against unauthorized commercial uses of an individual's identity has grown significantly over the last fifty years as it has relentlessly pursued economic value. It was forced to focus on value because a false distinction between the harms suffered by private citizens and celebrities seemingly left celebrities without a privacy claim for commercial use of their identities. But the normative case for awarding individuals the economic value of their identity is weak, since celebrities do not need additional incentive to invest in either their native skill or in developing a persona. Still, while the prevailing justification is inadequate, as …
Symposium: Creativity And The Law: Introduction, Mark P. Mckenna
Symposium: Creativity And The Law: Introduction, Mark P. Mckenna
Mark P. McKenna
No abstract provided.