Academic journal article William and Mary Law Review

More Than IP: Trademark among the Consumer Information Laws

Academic journal article William and Mary Law Review

More Than IP: Trademark among the Consumer Information Laws

Article excerpt

TABLE OF CONTENTS  INTRODUCTION  I. INTERCONNECTED ISSUE ANALYSIS     A. Consumer Information Law        1. Trademark           a. Trademark's Purpose           b. Trademark's Growth        2. Other Private Rights of Action        3. Administrative Regulation        4. Interacting Regimes     B. Simultaneous Analysis        1. Keyword Advertising        2. Merchandising        3. Counterfeits and What to Do About Them        4. Policy Priorities           a. Geographical Indications           b. Thinking Small           c. Thinking Large           d. Certifying        5.    Who Is the Reasonable Consumer?     C. Hidden Consumer Information Laws?     D. Upshots        1. Consumer Information Law as a Complex System        2. How Should Trademark Cases Be Decided? II. Offloading     A. Trademark's Expansion and Its Challenge for        Reformers     B. Why and When to Offload     C. Reclassifying Harms        1. Nominative Use Then        2. Nominative Use Now        3. Developing Safety Valves     D. Trademark Quality     E. Limiting the Subject Matter of Consumer Information        Law     F. The Risks of Offloading        1. False Connections        2. False Coverage        3. The Illusion of Doctrinal Autonomy        4. Something Else to Be Wrong About? CONCLUSION 


A lot of legal scholarship ponders trademark's relationship with other forms of intellectual property (IP). (1) This is no surprise. Trademarks, copyrights, and patents all protect intangible rights. As their respective legal regimes evolve, their policies may come into conflict due to overlapping subject matter. The resulting doctrinal tensions need reconciliation and provide fodder for analysis.

That said, thinking about trademark boundaries in terms of other IP laws is a bit odd. Copyrights and patents exist in order to incentivize invention and expression. (2) Trademark performs a different role. It is more fundamentally regulation of consumer information. (3) As such, it may enjoy a greater kinship with other consumer information regimes, be they based on private rights of action, like federal false advertising law, (4) or the regulatory activities of agencies like the Federal Trade Commission. (5)

This Article explores the consequences for trademark of being just one of many consumer information laws. Some of the issues addressed by trademark recur across regimes, inviting classification (6) and comparison (7) of different approaches to similar questions. My focus, however, is elsewhere. Rather than asking whether, for example, the Federal Trade Commission's definition of misleading advertising ought to guide parallel assessments in trademark, or making claims about the nature of misleading conduct, (8) this Article is interested in the consequences for trademark of the fact that multiple regimes answer these questions.

Part I begins the inquiry by describing trademark's connection with other consumer information laws. In many cases optimal trademark policy--by whatever criteria--depends on the state of play in another regime. This complicates trademark's development in multiple ways. It is not simply a problem of determining how another body of law treats the related issue. Identifying the relevant parallel regime is not always easy. Indeed, sometimes the laws most pertinent to the production of consumer information are more general in nature--think, for example, of the role that simple trespass law plays in determining what we know about how our meat is raised--and therefore easy to overlook.

The problem underscores the complexity of the larger "ecosystem" of generators and users of consumer information and the laws governing them. The various components of this broader structure may interact opaquely. The resulting lack of clarity has consequences for trademark's future development and the question of how responsibility for that development should be divided between judges and legislators. …

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