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Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman
Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman
All Faculty Scholarship
While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative …
Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits
Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits
Faculty Scholarship
This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine …
Liability Insurance As Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law In Action, Tom Baker
Liability Insurance As Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law In Action, Tom Baker
All Faculty Scholarship
Leaving aside difficult to interpret doctrinal developments, such as the abrogation of traditional immunities, liability insurance has at least the following six impacts on tort law in action. First, for claims against all but the wealthiest individuals and organizations, liability insurance is a de facto element of tort liability. Second, liability insurance limits are a de facto cap on tort damages. Third, tort claims are shaped to match the available liability insurance, with the result that liability insurance policy exclusions become de facto limits on tort liability. Fourth, liability insurance makes lawsuits against ordinary individuals and small organizations into repeat …