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The Apparent Manufacturer Doctrine, Trademark Licensors And The Third Restatement Of Torts, David Franklyn
The Apparent Manufacturer Doctrine, Trademark Licensors And The Third Restatement Of Torts, David Franklyn
Publications
In this Article, I argue that trademark licensors should be subjected to liability under the apparent manufacturer doctrine in two situations: (1) when a licensor induces consumers to believe the licensor manufactured the product, or (2) when a licensor induces consumers to believe that the licensor controlled the standards or specifications for manufacturing the product. Under either prong of the proposed test, a plaintiff would be required to show that a reasonable consumer of the licensed product would have relied on the trademark in the requisite manner. Once the plaintiff makes this showing, courts would then presume that the actual …
Toward A Coherent Theory Of Strict Tort Liability For Trademark Licensors, David Franklyn
Toward A Coherent Theory Of Strict Tort Liability For Trademark Licensors, David Franklyn
Publications
In this Article, I argue that the control tightrope and the general indeterminacy of licensor liability law is neither necessary nor desirable. Once the courts acknowledge that the relevant task is to design a set of flexible vicarious liability rules-rules that account for licensor control and involvement but which do not require proof of agency--constructing a coherent theory of licensor liability should be possible. The challenge is to articulate a set of rules that will impose strict (vicarious) liability on licensors who are not mere passive investors but who exert substantial control over their licensees, and who use the licensing …