©2016. Published in Landslide, Vol. 9, No. 1, September/October 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
Sometimes I think we’re getting trademarks all wrong. We focus a lot of attention on squeaky wheels: who’s suing whom, how large damages awards are, who’s behaving like a bully. (One might add “who doesn’t appear to understand the difference between trademarks, copyrights, and other stuff” to this list.) In more abstract areas, we frequently fixate on such things as functionality (which, on the whole, isn’t often a problem) and dilution of famous marks (when few marks qualify as famous for dilution purposes), while routinely lamenting a supposed “expansion” of trademark rights (even though, the last time I checked, the language of the Lanham Act itself hasn’t changed very much). We teach students about trademarks by defining them, at least initially, as “not patents,” and spend much of our time studying cases involving terrible marks, e.g., PARK ’N FLY, SEALTIGHT, etc. (Imagine training chefs by focusing on bad tastes, or trying to learn about relationships solely by studying divorce.)
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