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Full-Text Articles in Law
Trademark Law And The Prickly Ambivalence Of Post-Parodies, Charles E. Colman
Trademark Law And The Prickly Ambivalence Of Post-Parodies, Charles E. Colman
Charles E. Colman
This Essay examines what I call "post-parodies" in apparel. This emerging genre of do-it-yourself fashion is characterized by the appropriation and modification of third-party trademarks — not for the sake of dismissively mocking or zealously glorifying luxury fashion, but rather to engage in more complex forms of expression. I examine the cultural circumstances and psychological factors giving rise to post-parodic fashion, and conclude that the sensibility causing its proliferation is one grounded in ambivalence. Unfortunately, current doctrine governing trademark parodies cannot begin to make sense of post-parodic goods; among other shortcomings, that doctrine suffers from crude analytical tools and a …
The Myth And Reality Of Dilution, Sandra L. Rierson
The Myth And Reality Of Dilution, Sandra L. Rierson
Sandra L Rierson
Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying power of the targeted trademark. The assumption of both the original federal dilution statute enacted in 1995 as well as its substantial enlargement in 2006 is that the source-identifying capacity of a trademark is akin to a glass of water: spill a drop here, spill a drop there and eventually your glass is empty. This Article advances three claims. First, statutory dilution erroneously assumes that the source-identifying function of a trademark is a rivalrous …
Ending Dilution Doublespeak: Reviving The Concept Of Economic Harm In The Dilution Action, Alexander Dworkowitz
Ending Dilution Doublespeak: Reviving The Concept Of Economic Harm In The Dilution Action, Alexander Dworkowitz
Alexander Dworkowitz
No abstract provided.
Consumer Investment In Trademarks, Deborah R. Gerhardt
Consumer Investment In Trademarks, Deborah R. Gerhardt
Deborah R Gerhardt
Consumer Investment in Trademarks This article introduces the consumer investment model as means to identify and protect twenty first century consumer interests in trademarks. Section I demonstrates why this model is necessary. Protecting consumer interests is the theoretical rationale for regulating trademarks. Theory and practice meshed well when the rights of trademark owners aligned with consumers. For example, both trademark owners and consumers are harmed when marks are used on low quality counterfeit goods. In cyberspace, this neat alignment often breaks apart. Many unauthorized uses, such as keyword advertising, benefit consumers but threaten owner control over marks. In order to …
Is Congress Dilution-Al: Problems With The Trademark Dilution Revision Act Of 2006, Jason Flower
Is Congress Dilution-Al: Problems With The Trademark Dilution Revision Act Of 2006, Jason Flower
jason flower
In 2006, Congress passed the Trademark Dilution Revision Act (“TDRA”), with the intent to more precisely define what constitutes dilution and who may bring a dilution claim, and to specifically overrule Moseley v. Victoria’s Secret Catalogue, Inc. The now infamous decision set the bar for a dilution claim at showing actual dilution rather than a likelihood of dilution, much to the chagrin of the owners of famous trademarks. The TDRA has not been interpreted with the ease Congress intended, and the problems concerning dilution have not subsided. My argument is twofold. First, the standard for likelihood of confusion currently offers …
Truth And Advertising: The Lanham Act And Commercial Speech Doctrine, Rebecca Tushnet
Truth And Advertising: The Lanham Act And Commercial Speech Doctrine, Rebecca Tushnet
Rebecca Tushnet
The Lanham Act and its state counterparts in trademark and unfair competition law regulate speech in ways inconsistent with the current thrust of Supreme Court’s commercial speech doctrine. The lines between confusing and informative uses of trademarks and between true and false advertising claims are difficult to draw, in ways that in other contexts – particularly libel doctrine – have led courts to impose increasing burdens on plaintiffs and regulators. I will discuss the First Amendment implications of distinguishing truth from falsity in commercial speech, applied to trademark infringement and to other types of false advertising. In addition, on a …
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% …
Time To Dilute The Dilution Statute And What Not To Do When Opposing Legislation: Beyond A Comment On Professor Port's The "Unnatural" Expansion Of Trademark Rights: Is A Federal Dilution Statute Necessary?, Malla Pollack
Malla Pollack
This article has three goals: to state clearly the practical problems with the Federal Trademark Dilution Act of 1995, to suggest modifications to deal with these problems, and to explore why prior opposition pieces did not garner support from the uncommitted. This last project requires a subject for the dissection table. Because it won the coveted Ladas Memorial Award for the best trademark article in 1994 and because it was published by the Trademark Reporter just before Congress voted on the Act, this article focuses on Kenneth Port's article, "The 'Unnatural' Expansion of Trademark Rights: Is a Federal Dilution Statute …