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Full-Text Articles in Law
Two-Tiered Trademarks, Glynn Lunney
Two-Tiered Trademarks, Glynn Lunney
Faculty Scholarship
Today, we have a two-tiered trademark system. In the top tier, both parties can afford to litigate. In the lower tier, only one party can. This two-tiered system has arisen over the last century because courts refused to follow the law. Faced with trademark law that led to seemingly unjust outcomes in the case before them, courts rewrote trademark law. When those initial rewrites led to different sorts of seeming injustice as cases continued to arise, courts rewrote trademark law again and again. Moreover, judges rewrote trademark law not as part of any systemic and coherent plan for trademark law, …
Trademark's Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly, Glynn Lunney
Trademark's Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly, Glynn Lunney
Faculty Scholarship
Trademark law has de-evolved. It has transitioned from an efficient mechanism for ensuring competition into an inefficient regime for capturing economic rents. In this Article, I focus on the role that party self-interest has played in biasing the evolution of trademark law. This self-interest tends to lead parties to (1) challenge efficient legal rules and seek to replace them with inefficient, anticompetitive rules, and (2) accede to inefficient, anticompetitive rules once they are in place. Almost by definition, when a rule of trademark law promotes competition, it reduces the market surplus or rents that current producers capture. As a result, …