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Trademark Morality, Mark Bartholomew
Trademark Morality, Mark Bartholomew
Mark Bartholomew
This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, there are also at work judicial assessments of highly charged questions of right and wrong. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decisionmaking, often operating without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly …
The New Federal Trademark Dilution Act Is A Constitutional Restriction On Free Speech, Don E. Reeve
The New Federal Trademark Dilution Act Is A Constitutional Restriction On Free Speech, Don E. Reeve
Don E Reeve Jr.
The Note discusses the constitutionality of the Federal Trademark Dilution Act of 2006 (FTDRA) in light of First Amendment concerns by discussing and analyzing 1) the history and evolution of trademark dilution protection while attempting to clarify the confusion over the definition of dilution, 2) the perceived conflict between trademark dilution protection and the First Amendment noting the foundational arguments supporting the criticism of the FTDRA, and 3) the specific criticisms of the FTDRA. The Note then proceeds to apply the legal principals governing First Amendment protection to the current federal statute and argues that the FTDRA does not threaten …
Trademark Extortion: The End Of Trademark Law, Kenneth L. Port
Trademark Extortion: The End Of Trademark Law, Kenneth L. Port
Kenneth L. Port
Trademark litigation in America today is undergoing a profound change. Based on a review of all trademark cases reported since the Lanham Act took effect, this article concludes that this profound change is due to 鍍rademark extortion,・the use of strike suits and the like to deter market entrants. All 7,500 reported trademark decisions between 1947 and 2005 were read. Of those, 2,659 were truly substantive cases that terminated a trademark law suit. The claimant of a trademark right prevailed only 51% of the time. They prevailed in getting an injunction in only 55% of those cases demanding one. Only 5.5% …
Likelihood Of Confusion, Ann Bartow
Likelihood Of Confusion, Ann Bartow
Ann Bartow
The primary objective of this Article is to illustrate the tendency of judges to inappropriately rely on personal intuition and subjective, internalized stereotypes when ruling on trademark disputes. Where jurists perceive consumers as ludicrously easily confused, trademark holders can exploit these views to secure broad trademark "rights," often without offering a shred of evidentiary corroboration concerning such confusion. As a consequence, the proof required to support allegations that a trademark usage creates a likelihood of confusion is potentially lessened in all cases, making trademarks normatively stronger, broader, and ever easier to "protect" for mark holders. Whether consumers realistically benefit from …