Law Commons^™

Trademark Tension, Part Ii, James Gibson

Law Faculty Publications

In the previous entry in this series, I discussed the narrow foundations of trademark law and its more recent expansion – in particular, how new approaches to trademark liability have departed from the law’s traditional focus on disputes about the source of competing goods. I continue that theme now by considering a tension that emerges from this expansion. Although trademark liability has expanded beyond source-identification, other aspects of trademark law have not, and these more traditional aspects can rise up and trap the unwary mark owner, or at least turn its expanded rights into expanded costs.

To understand the tension …

Stolen Valor & The First Amendment: Does Trademark Infringement Law Leave Congress An Opening?, Susan Richey, John M. Greabe

Law Faculty Scholarship

This paper elaborates an argument the authors presented in an amicus brief filed in United States v. Alvarez, the "Stolen Valor" case. The paper contends that Congress could constitutionally protect the Congressional Medal of Honor as a collective membership mark by means of trademark infringement legislation.

Trademark Tension, Part I, James Gibson

Law Faculty Publications

In this Intellectual Property Viewpoints series, we tend to focus on copyright and patent law – the “big two” IP regimes that govern innovation in the arts and sciences. But there is a third IP regime, a cousin to copyright and patent, which is important to almost any enterprise, even if its business has nothing to do with innovation. That’s trademark law.

Over the last several decades, trademark law has grown from its modest roots and experienced an expansion that rivals that of its more high-profile cousins. In this essay and the next, I will discuss this phenomenon, and in …

The Eye Alone Is The Judge: Images And Design Patents, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Design patents are an area of intellectual property law focused entirely on the visual, unlike copyright, patent, trademark, trade secret, or the various sui generis protections that have occasionally been enacted for specific types of innovation. Judges and lawyers in general are highly uncomfortable with images, yet design patents force direct legal engagement with images. This short piece offers an outsider’s view of what design patent law has to say about the use of images as legal tools, why tests for design patent infringement are likely to stay unsatisfactory, and what lessons other fields of intellectual property, specifically copyright, might …