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Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman
Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman
All Faculty Scholarship
While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative …
When You Wish Upon Dastar: Creative Provenance And The Lanham Act, Mary Lafrance
When You Wish Upon Dastar: Creative Provenance And The Lanham Act, Mary Lafrance
Scholarly Works
This Article examines the application of section 43(a) of the Lanham Act to claims of reverse passing off through the lens of the Supreme Court's unpersuasive effort in Dastar Corp. v. Twentieth Century Fox Film Corp. to exclude a single class of reverse passing off-claims - those involving “expressive” works as opposed to physical commodities - from the scope of section 43(a). The Article critiques the Court's analysis of section 43(a) in light of case law and the pertinent legislative history, including, the Trademark Law Revision Act of 1988, the Berne Convention Implementation Act of 1988, and the Visual Artists …
The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of "Paternity"?, Jane C. Ginsburg
The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of "Paternity"?, Jane C. Ginsburg
Faculty Scholarship
The US. Supreme Court in its 2003 decision in Dastar v. Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US. I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right. This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name. I will suggest that, contrary to the usual characterization of this …