Academic journal article Texas Review of Law & Politics

The Trojan Doctrine: Trademarks and the Law of the Horse

Academic journal article Texas Review of Law & Politics

The Trojan Doctrine: Trademarks and the Law of the Horse

Article excerpt

Trademark law desperately needs the Trojan Doctrine. Rather than defining the doctrine, I begin with an illustration. Magellan's Travel (former slogan: "Safe Travel Begins at Magellan's") specializes in books and equipment for travelers. Magellan was a famous explorer, so on the surface the trademark makes perfect sense. Many people, when asked who Magellan was, will say that he was the first person to circumnavigate the globe.

In fact, Magellan never circumnavigated the globe, but was killed half-way across, in the Philippines. The whole voyage also managed to do in 250 out of 270 members of Magellan's crew, apparently also the likely fate of those who shop at Magellan Travel, especially if they are carrying Amelia Earhart Luggage.

The Trojan Doctrine, I suggest, should invalidate trademarks if consumers-had they only thought hard about the phrasewouldn't dream of buying a product with such an inapt name. One might think of this as a sort of doctrine of "tertiary meaning." I don't know what precisely is harmful about such trademarks, but surely there must be something.

Consider Rembrandt Toothpaste, which supposedly whitens teeth. Sparkling teeth are good, and Rembrandt van Rijn is good. And yet Rembrandt's paintings are mostly done in deep, dark colors. The subjects almost never show their teeth, for reasons familiar to those who know Renaissance hygiene. Are the Rembrandt Toothpaste people sending us a hidden message about the efficacy of their product? Are they trying to spread artistic illiteracy? There ought to be a law.

Other examples abound. I foolishly bought a Random House Unabridged Dictionary before thinking the matter through more deeply. On reflection, I realize that randomness is the quality I least want in a dictionary-or in a house-either in the sequence of the entries or their content. …

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