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Confusion Isn't Everything, William Mcgeveran, Mark P. Mckenna
Confusion Isn't Everything, William Mcgeveran, Mark P. Mckenna
Mark P. McKenna
The typical shorthand justification for trademark rights centers on avoiding consumer confusion. But in truth, this encapsulation mistakes a method for a purpose: confusion merely serves as an indicator of the underlying problems that trademark law seeks to prevent. Other areas of law accept confusion or mistake of all kinds, intervening only when those errors lead to more serious harms. Likewise, every theory of trademark rights considers confusion troubling solely because it threatens more fundamental values such as fair competition or informative communication. In other words, when it comes to the deep purposes of trademark law, confusion isn’t everything. Yet …
Progress And Competition In Design, Mark P. Mckenna, Katherine J. Strandburg
Progress And Competition In Design, Mark P. Mckenna, Katherine J. Strandburg
Mark P. McKenna
This article, prepared for a symposium on Design Patents in the Modern World, argues that applying patent-like doctrine to design makes sense only if a design patent system is premised on a patent-like conception of cumulative progress that permits patent examiners and courts to assess whether a novel design reflects a step of some magnitude beyond the prior art. If there is a meaningful way to speak of an inventive step in design, then design patent doctrine should be based on that conception. If nonobviousness has no sensible meaning in design, then a patent system makes no sense for design. …