Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Publication
- Publication Type
Articles 1 - 2 of 2
Full-Text Articles in Law
The Commodification Of Trademarks: Some Final Thoughts On Trademark Dilution, Kenneth L. Port
The Commodification Of Trademarks: Some Final Thoughts On Trademark Dilution, Kenneth L. Port
Hofstra Law Review
After nearly 20 years of effectiveness, the Federal Trademark Dilution Act (FTDA) remains as controversial as ever. What the 20 years of jurisprudence has taught us is that academics have been right all along. Dilution is either unconstitutional, inappropriate, or simply misguided legislation. This article calls for its repeal. A thorough literature review shows that most academics oppose dilution. A study of all trademark litigation demonstrates that the cause of action of pure dilution never appears in reported cases anymore. The existence of the FTDA gives trademark holders the perverse incentive to claim that all marks are famous as “fame” …
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 …