Trademark Morality

By Bartholomew, Mark | William and Mary Law Review, October 2013 | Go to article overview

Trademark Morality


Bartholomew, Mark, William and Mary Law Review


ABSTRACT

This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant's use of a mark, not the use's morality. Nevertheless, under this utilitarian facade, judicial assessments of highly charged questions of right and wrong are also at work. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decision making, often without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly those deemed to insufficiently invest of themselves in the marketplace, results in an overbroad consideration of the defendant's intent. Judicial conceptions of sexual propriety guide trademark dilution law. Loyalty to certain views and markers of nationhood explain judge-made rules that privilege particular meanings for national symbols over consumer welfare. These three examples show that moral intuition can produce very bad trademark doctrine. The Article concludes that moral concerns will inevitably influence judges, but they will do less harm if, instead of being hidden behind economic rhetoric, they are brought to the surface and interrogated just like any other technique of legal argument.

TABLE OF CONTENTS

INTRODUCTION
  I. THE ROLE OF MORAL JUDGMENT IN LEGAL DECISION MAKING
     A. What Is Morality?
     B. Morality's Current Disfavor in the Law
     C. Morality and Legal Decision Making
        1. Moral Judgment
        2. Effect on Judges
 II. DETECTING UNFAIRNESS
     A. Personal Investment and Moral Nature
     B. Intent
     C. Privileging Use of Personal Names
III. MAINTAINING SEXUAL PURITY
     A. Biology, History, and Sexuality
     B. Sexuality and Modern Trademark Law
 IV. PROTECTING THE NATION-STATE
     A. Territoriality and National Loyalty
     B. Respect for Symbols of National Authority
  V. FINDING A BETTER ROLE FOR MORAL ARGUMENTS IN
     TRADEMARK LAW
CONCLUSION

"The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds." (1)

INTRODUCTION

Looking at modern trademark jurisprudence, it appears that, at least in one area of the law, Holmes's cautionary statement has been taken to heart. The legal community today typically frames trademark law through the lens of efficiency. Judging from published decisions and law review articles, trademark law's prime directive is to remove obstacles from the consumer experience. (2) As noted by one trademark scholar, "Current thinking about trademark law is dominated by economic analysis, which views the law as a system of rules designed to promote informational efficiencies." (3) According to this line of thinking, by preserving the signaling power of particular words and symbols, trademark protection reduces consumer search costs and prevents wasteful confusion. This protection must yield only when consumers derive an even greater informational benefit from a defendant's use of another's trademark. (4)

The focus on efficiency suggests a cold, dispassionate, and rational approach to questions of trademark protection, one that disclaims ethical considerations. What matters are the consequences, particularly for consumers, of a particular use of a mark, not the use's morality. As one court recently explained: "[T]rademark law [is] not [a] matter[] of strong moral principle. Intellectual property regimes are economic legislation based on policy decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole." (5) Given this predominant thinking, judges are criticized when they stray from the focus on economic consequences and appear to apply their own moral intuitions to a trademark dispute.

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