Trademark Law

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Graeme B. Dinwoodie - One of the best experts on this subject based on the ideXlab platform.

  • territorial overlaps in Trademark Law the evolving european model
    Notre Dame Law Review, 2017
    Co-Authors: Graeme B. Dinwoodie
    Abstract:

    INTRODUCTION I. Trademark TERRITORIALITY II. MECHANISMS TO MODERATE THE FORCE OF TERRITORIALITY III. INCREASED OVERLAP IN MARKS: CLUTTER IV. COMMITMENTS TO THE UNITARY CHARACTER OF THE EUTM: THE COURT OF JUSTICE A. Genuine Use B. Scope of Relief V. APPLICATIONS OF LENO MERKEN AND DHL: RESISTANCE? A. Genuine Use B. Scope of Relief C. Relief in Dilution Cases VI. THE UNITARY PRINCIPLE AND OVERLAPPING RIGHTS: A DEFENSE OF RESISTANCE A. Two Paradoxes 1. Local Rights in a Regional or Global Polity 2. The Interdependence-and-Scope Paradox B. Institutional and Conceptual Design C. Concrete Reform Proposals 1. Judicial Resistance: Developing Interpretation of Leno Merken and DHL 2. Elevating Use-Based Devices 3. Embracing Coexistence of Registered Rights 4. Right to (Nonexclusive) Use Defenses 5. Temporary Nonenforceability D. Hardly a Radical Resistance 1. The "Emmenthal Cheese" Provisions 2. The Expansion Compromise CONCLUSION INTRODUCTION Trademark Law has to address "overlapping" rights in a number of contexts. Thus, both the United States Supreme Court and the Court of Justice of the European Union have in recent years tackled the prospect that Trademark rights in product shapes might effectively extend the life of patented inventions, (1) or the concern that limits in copyright Law might be evaded through assertion of Trademark-like claims as regards copyrightable subject matter. (2) In Europe, where design Law is a more prominent part of intellectual property disputes, the relationship between Trademark Law and design Law is also heavily contested. (3) And disputes about the overlap of rights under Trademark and unfair competition Law are also on the horizon on both sides of the Atlantic: the European debate implicates allocation of authority between EU and national Law, (4) while in the United States, resolution of the constitutionality of the exclusion from registration of disparaging marks might force the courts to confront in a new context the character of residual use-based rights in a system where such rights have been overlaid by a federal registration scheme. (5) The overlap tackled in this Article--the territorial overlap of competing Trademark rights--might be viewed in part through the registration/use prism. Certainly, one of the contexts where territorial disputes are most acute is where the reach of a registration is not closely coextensive with the area of Trademark use. But this Article seeks to explore the territorial overlap problem more broadly. Resolving a conflict between two similar rights that overlap (whether territorially or otherwise) is perhaps more central to Trademark Law than other intellectual property regimes. (6) The fact that an applicant for a Trademark would notionally infringe an earlier right is a so-called relative ground for denial of the later registration, and such assessments are a crucial and significant part of Trademark Law. (7) Indeed, they are becoming even more frequent as the register and the marketplace become choked with a greater number of marks of increasing scope. (8) Thus, this Article's treatment of the territorial overlap of rights--one dimension along which there may be dwindling space for new marks--might also be considered as part of the ongoing debate about so-called Trademark "clutter." One cause of the increasing conflict between overlapping Trademark rights is the trend in international Trademark Law to develop (mostly, but not entirely, administrative) mechanisms designed to extend rights more easily and more quickly beyond the borders of a single nation-state. These efforts reflect pressures caused by global trade and digital commerce. (9) If brands are known and sold globally, as the Internet has facilitated with many goods and services, then limiting the reach of Trademarks to national borders is seen by many as anachronistic. …

  • Trademark Law and Theory: A Handbook of Contemporary Research
    2009
    Co-Authors: Graeme B. Dinwoodie, Mark D. Janis
    Abstract:

    Contents: Introduction PART I: METHODOLOGICAL PERSPECTIVES 1. From Communication to Thing: Historical Aspects of the Conceptualisation of Trade Marks as Property, Lionel Bently 2. The Semiotic Account of Trademark Doctrine and Trademark Culture, Barton Beebe 3. A Search-Costs Theory of Limiting Doctrines in Trademark Law, Stacey L. Dogan and Mark A. Lemley 4. Trade Mark Bureaucracies, Robert Burrell 5. The Political Economy of Trademark Dilution, Clarisa Long PART II: INTERNATIONAL AND COMPARATIVE DIMENSIONS 6. Fundamental Concerns in the Harmonization of (European) Trademark Law, Annette Kur 7. Substantive Trademark Law Harmonization: On the Emerging Coherence Between the Jurisprudence of the WTO Appellate Body and the European Court of Justice, Gail E. Evans 8. The Free Movement (or not) of Trademark Protected Goods in Europe, Thomas Hays 9. The Trademark Law Provisions of Bilateral Free Trade Agreements, Burton Ong PART III: CRITICAL ISSUES A. Trademarks and Speech 10. Reconciling Trademark Rights and Expressive Values: How to Stop Worrying and Learn to Love Ambiguity, Rochelle Cooper Dreyfuss 11. Truth and Advertising: The Lanham Act and Commercial Speech Doctrine, Rebecca Tushnet 12. Restricting Allusion to Trade Marks: A New Justification, Michael Spence B. Limiting the Scope of Trademark Rights 13. Protecting the Common: Delineating a Public Domain in Trade Mark Law, Jennifer Davis 14. Tolerating Confusion About Confusion: Trademark Policies and Fair Use, Graeme W. Austin 15. Online Word of Mouth and its Implications for Trademark Law, Eric Goldman C. Trademarks and Traditional Knowledge 16. Trademarks and Traditional Knowledge and Cultural Intellectual Property Rights, Susy Frankel 17. Culture, Traditional Knowledge and Trademarks: A View from the South, Coenraad Visser D. The Edges of Trademark Protection 18. Of Mutant Copyrights, Mangled Trademarks, and Barbie's Beneficence: The Influence of Copyright on Trademark Law, Jane C. Ginsburg 19. Signs, Surfaces, Shapes and Structures - The Protection of Product Design Under Trade Mark Law, Alison Firth Index

  • Lewis & Clark College of Law Ninth Distinguished IP Lecture: Developing Defenses in Trademark Law
    2009
    Co-Authors: Graeme B. Dinwoodie
    Abstract:

    Trademark Law contains important limits that place a range of third party conduct beyond the control of the Trademark owner. However, I suggest that Trademark Law would be better served if several of its limits were explicitly conceptualized as defenses to an action for infringement, that is, as rules permitting unauthorized uses of marks even where such uses implicate the affirmative concerns of Trademark Law and thus support a prima facie cause of action by the Trademark owner. To explore why this distinction between limits and defenses matters, I discuss the different nature of the proscription imposed by copyright and Trademark Law. And I draw lessons both from case Law deriving limits from interpretation of the proscription of Trademark Law as well as from the development of statutory defenses to dilution. Conceiving of limits as defenses would help ensure that the (often unstated) values underlying socially desirable third party uses are not too readily disregarded if they happen to conflict with confusion-avoidance concerns that are historically powerful drivers of Trademark protection. Such an approach would also ameliorate the uncertainties caused by the acceptance of extended (and increasingly amorphous) notions of actionable harm in Trademark Law. And it would facilitate a more transparent debate about the different forms that limits on Trademark rights might take. Some defenses will operate as mechanisms by which to balance competing policy concerns on a case-by-case basis, while others (reflecting more fundamental normative commitments, or driven by more proceduralist concerns) might allow certain values categorically to trump the basic policy concerns supporting liability for Trademark infringement. Full development of these defenses will involve courts adopting a conscious understanding of the different jurisprudential nature of defenses and will be made easier by acceptance of the Lanham Act as a delegating statute.

  • lewis clark college of Law ninth distinguished ip lecture developing defenses in Trademark Law
    2009
    Co-Authors: Graeme B. Dinwoodie
    Abstract:

    Trademark Law contains important limits that place a range of third party conduct beyond the control of the Trademark owner. However, I suggest that Trademark Law would be better served if several of its limits were explicitly conceptualized as defenses to an action for infringement, that is, as rules permitting unauthorized uses of marks even where such uses implicate the affirmative concerns of Trademark Law and thus support a prima facie cause of action by the Trademark owner. To explore why this distinction between limits and defenses matters, I discuss the different nature of the proscription imposed by copyright and Trademark Law. And I draw lessons both from case Law deriving limits from interpretation of the proscription of Trademark Law as well as from the development of statutory defenses to dilution. Conceiving of limits as defenses would help ensure that the (often unstated) values underlying socially desirable third party uses are not too readily disregarded if they happen to conflict with confusion-avoidance concerns that are historically powerful drivers of Trademark protection. Such an approach would also ameliorate the uncertainties caused by the acceptance of extended (and increasingly amorphous) notions of actionable harm in Trademark Law. And it would facilitate a more transparent debate about the different forms that limits on Trademark rights might take. Some defenses will operate as mechanisms by which to balance competing policy concerns on a case-by-case basis, while others (reflecting more fundamental normative commitments, or driven by more proceduralist concerns) might allow certain values categorically to trump the basic policy concerns supporting liability for Trademark infringement. Full development of these defenses will involve courts adopting a conscious understanding of the different jurisprudential nature of defenses and will be made easier by acceptance of the Lanham Act as a delegating statute.

  • Ensuring Consumers 'Get What They Want': The Role of Trademark Law
    2008
    Co-Authors: Graeme B. Dinwoodie
    Abstract:

    This paper was presented as the Third Annual Herchel Smith Lecture on Intellectual Property Law at Emmanuel College, University of Cambridge in May 2008. It considers how modern Trademark Law should interpret the commitment in the legislative history to the 1946 (US) Lanham Act that one of the principal purposes of Trademark Law is "to protect the public so that it may be confident that, in purchasing a product bearing a particular Trademark which it favorably knows, it will get the product which it asks for and which it wants to get". The Lecture first looks back to highlight the often under-appreciated role of the consumer protection rationale in recent expansions in Trademark protection in the United States, and then considers some of the different ways by which that basic objective might now be pursued by Trademark Law. The Lecture concludes that, without disregarding the core consumer protection purpose of Trademark Law, we need to start viewing the question of ensuring consumers get what they want both with a broader view of consumer interests and with more explicit attention to a wider array of values implicated by Trademark protection.

Alena Wolotira - One of the best experts on this subject based on the ideXlab platform.

S. Wright - One of the best experts on this subject based on the ideXlab platform.

  • Cybersquatting at the Intersection of Internet Domain Names and Trademark Law
    IEEE Communications Surveys and Tutorials, 2012
    Co-Authors: S. Wright
    Abstract:

    This is a tutorial about the basic elements of domain name system and Trademark Law focussing on the interactions between them and specifically on the concept of cybersquatting. Cybersquatting is the registration (with the intent to profit) of a domain name that is the Trademark of another. The tutorial reviews the structure of the domain name space and it's associated protocols as well as the legal context for Trademarks and the recent advances for adjudication of disputes related to cybersquatting. Intermixed with the technical discussion, the paper also provides four rationales for engineers concerned with the design of communications protocols and related information systems to give consideration to aspects of Law, in this case Trademark Law, that may impact the design or usage of these protocols and information systems. Some potential impacts of recent extensions proposed for the gTLD domain name space are also considered.

Anne Guha - One of the best experts on this subject based on the ideXlab platform.

Savanna Nolan - One of the best experts on this subject based on the ideXlab platform.

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