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Full-Text Articles in Law
Thick Marks, Thin Marks, Michael Grynberg
Thick Marks, Thin Marks, Michael Grynberg
College of Law Faculty
Not all trademarks are created equal. Strong marks like APPLE computer receive more protection than lesser known, weaker marks like JOE’S diner. The difference is reflected by the amount of attention judges pay to surrounding context in resolving infringement claims. When a mark receives “thick” protection, facts that might make confusion less likely (e.g., clarifying marketplace realities or perceptible differences between the parties’ marks) matter less than when protection is thin. This conception of thick or thin protection is part of routine trademark disputes, but it has more interesting implications for trademark law. Trademarks do more than identify a product’s …
More Than Ip: Trademark Among The Consumer Information Laws, Michael Grynberg
More Than Ip: Trademark Among The Consumer Information Laws, Michael Grynberg
College of Law Faculty
We generally think about trademark law as a branch of intellectual property law. Because trademark law regulates marketplace information, however, its closer peers may be other consumer information regimes — e.g., false advertising law and FTC regulations — instead of incentive-based IP laws like copyright and patent. This article considers some implications of this observation.In many cases optimal trademark policy depends on ascertaining the state of play in another consumer information doctrine. That may be less simple than it sounds. Trying to determine how another body of law treats a parallel issue presupposes that we know where to look. We …
The Judicial Role In Trademark Law, Michael Grynberg
The Judicial Role In Trademark Law, Michael Grynberg
College of Law Faculty
This article considers the judicial role in developing trademark law. The issue is important because proposals for trademark reform often rest on expansive conceptions of judicial authority. In thinking about trademark reform, we should broaden our perspective to include considerations of what we want from the law in general. Our answer to the question of what judges applying the Lanham Act should do may vary depending on whether we respond as subjects of trademark law (i.e., as consumers or sellers), as litigants to a trademark action, or as third parties whose focus is not on trademark law, but the general …
Things Are Worse Than We Think: Trademark Defenses In A 'Formalist' Age, Michael Grynberg
Things Are Worse Than We Think: Trademark Defenses In A 'Formalist' Age, Michael Grynberg
College of Law Faculty
Numerous articles decry the reach of modern trademark law. This article assumes the premise that these critiques are valid and asks what courts can do in response. The answer may be, not much. The “common law” practices that extended trademark’s scope are not up to the task of creating adequate countervailing defenses. Congress acquiesced to the judicial expansion of trademark liability by amending the Lanham Act with conforming language. That pattern is unlikely to be repeated for trademark defenses. The Supreme Court’s recent trademark precedents resist assertions of trademark rights beyond the express confines of the Lanham Act. If these …
Trademark Litigation As Consumer Conflict, Michael Grynberg
Trademark Litigation As Consumer Conflict, Michael Grynberg
College of Law Faculty
Trademark litigation typically unfolds as a battle between competing sellers who argue over whether the defendant's conduct is likely to confuse consumers. This is an unfair fight. In the traditional narrative, the plaintiff defends her trademark while simultaneously protecting consumers at risk for confusion. The defendant, relatively speaking, stands alone. The resulting "two-against-one" storyline gives short shrift to the interests of nonconfused consumers who may have a stake in the defendant's conduct. As a result, courts are too receptive to nontraditional trademark claims where the case for consumer harm is questionable. Better outcomes are available by appreciating trademark litigation's parallel …