Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Intellectual Property Law

PDF

Selected Works

Mark P. McKenna

Selected Works

2014

Articles 1 - 2 of 2

Full-Text Articles in Law

Confusion Isn't Everything, William Mcgeveran, Mark P. Mckenna Jan 2014

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 Jan 2014

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. …