Law Commons^™

Trademark Use Rides Again, Mark P. Mckenna

Journal Articles

Back in 2007, the Iowa Law Review published a dialogue between Graeme Dinwoodie and Mark Janis, on the one hand, and Stacey Dogan and Mark Lemley on the other. The topic was "trademark use," and the question was whether such a doctrine really exists. Dinwoodie and Janis said no-that while only commercial use of a trademark can be considered infringing, there is no threshold requirement that the plaintiff prove that the defendant has used the mark in some particular "trademark" way. Dogan and Lemley said yes—that some "uses" of a mark simply don't trigger liability, and a court needs to …

Comparative Analysis Of Innovation Failures And Institutions In Context, Mark Mckenna

Journal Articles

Many different legal and non-legal institutions govern and therefore shape knowledge production. It is tempting, given the various types of knowledge, knowledge producers, and systems with and within which knowledge and knowledge producers and users interact, to look for reductionist shortcuts — in general but especially in the context of comparative institutional analysis. The temptation should be resisted for it leads to either what Harold Demsetz called the Nirvana Fallacy or what Elinor Ostrom critiqued as myopic allegories.

We suggest that comparative institutional analysis must be accompanied by comparative failure analysis, by which we mean rigorous and contextual comparative analysis …