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Full-Text Articles in Intellectual Property Law
Is "Dumb Starbucks" Legal? Mark Mckenna Talks To Business Insider, February 10, 2014., Mark Mckenna
Is "Dumb Starbucks" Legal? Mark Mckenna Talks To Business Insider, February 10, 2014., Mark Mckenna
Mark P. McKenna
Mark McKenna was quoted in the Business insider article by Erin Fuchs. "This is a fairly bold use of the Starbucks logo," Notre Dame law professor Mark McKennatold me. "What they've done is they've taken that word 'dumb' and they have basically copied everything." Read more: http://www.businessinsider.com/is-dumb-starbucks-legal-2014-2#ixzz2sxEeHa00
Testing Modern Trademark Law's Theory Of Harm, Mark Mckenna
Testing Modern Trademark Law's Theory Of Harm, Mark Mckenna
Mark P. McKenna
Modern scholarship takes a decidedly negative view of trademark law. Commentators rail against doctrinal innovations like dilution and initial interest confusion. They clamor for clearer and broader defenses. And they plead for greater First Amendment scrutiny of various applications of trademark law. But beneath all of this criticism lies overwhelming agreement that consumer confusion is harmful. This easy acceptance of the harmfulness of confusion is a problem because it operates at too high a level of generality, ignoring important differences between types of relationships about which consumers might be confused. Failure to differentiate between these different relationships has enabled trademark …
Teaching Trademark Theory Through The Lens Of Distinctiveness, Mark P. Mckenna
Teaching Trademark Theory Through The Lens Of Distinctiveness, Mark P. Mckenna
Mark P. McKenna
This contribution to the annual teaching edition of the Saint Louis University Law Journal encourages teachers to begin trademark law courses using the concept of distinctiveness as a vehicle for articulating producer and consumer perspectives in trademark law. Viewing the law through these sometimes different perspectives helps in approaching a variety of doctrines in trademark law, and both perspectives are relatively easy to grasp in the context of distinctiveness.
Trademark Law's Faux Federalism, Mark Mckenna
Trademark Law's Faux Federalism, Mark Mckenna
Mark P. McKenna
Federal and state trademark laws regulate concurrently: The Lanham Act does not preempt state law, and in fact many states have statutorily and/or judicially developed trademark or unfair competition laws of their own. This state of affairs, which is now well-accepted even if it has not always been uncontroversial, distinguishes trademark law from patent and copyright law, since federal patent and copyright statutes preempt state law much more broadly. The Patent Act entirely preempts state law with respect to non-secret inventions and the 1976 Copyright Act preempts state copyright law with respect to all works fixed in a tangible medium …
What's The Frequency, Kenneth? Channeling Doctrines In Trademark Law, Mark Mckenna
What's The Frequency, Kenneth? Channeling Doctrines In Trademark Law, Mark Mckenna
Mark P. McKenna
This paper was published as a chapter in Intellectual Property and Information Wealth (Peter Yu, ed., Praeger 2007). The chapter describes several doctrines that courts have developed to limit the scope of trademark protection where there is a risk of interference with the patent or copyright schemes. It also suggests that courts have in some cases overemphasized the subject matter of protection and underemphasized parties' ability to use trademark law to capture the types of economic benefits for which patent and copyright protection are presumed necessary.
The Right Of Publicity And Autonomous Self-Definition, Mark P. Mckenna
The Right Of Publicity And Autonomous Self-Definition, Mark P. Mckenna
Mark P. McKenna
Legal protection against unauthorized commercial uses of an individual's identity has grown significantly over the last fifty years as it has relentlessly pursued economic value. It was forced to focus on value because a false distinction between the harms suffered by private citizens and celebrities seemingly left celebrities without a privacy claim for commercial use of their identities. But the normative case for awarding individuals the economic value of their identity is weak, since celebrities do not need additional incentive to invest in either their native skill or in developing a persona. Still, while the prevailing justification is inadequate, as …