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Full-Text Articles in Intellectual Property Law
Trademark’S Ebay Problem, Peter J. Karol
Trademark’S Ebay Problem, Peter J. Karol
Fordham Intellectual Property, Media and Entertainment Law Journal
This Article addresses the current debate over whether to extend, to trademark law, the rule in eBay, Inc. v. MercExchange, L.L.C. denying prevailing patent plaintiffs presumptive entitlement to injunctive relief. Its central concern, however, is not whether or how eBay should apply to trademark law, but rather the way in which the debate resurfaces structural flaws undermining foundational provisions of the Lanham Act. Namely, the Act purports to grant ex ante exclusive rights to mark owners against all confusingly similar uses, but then reserves discretion to district courts to deny statutory injunctive relief without further guidance. This ambiguity, a familiar …