More Than IP: Trademark among the Consumer Information Laws

By Grynberg, Michael | William and Mary Law Review, April 2014 | Go to article overview

More Than IP: Trademark among the Consumer Information Laws


Grynberg, Michael, William and Mary Law Review


D. Upshots

This subpart draws some lessons from considering trademark issues in light of the broader consumer information system.

1. Consumer Information Law as a Complex System

The consumer information "ecosystem" is complex. Its many players and regulatory regimes overlap and interact in a variety of ways, some not immediately obvious. Evaluating any particular doctrine or answering any question that implicates multiple bodies of law is therefore complicated.

Some judicial ramifications are discussed below, but it is worth considering the challenges for those looking to improve the operation of consumer information law as a policy matter. (186) Suppose a food advocacy organization wishes to stabilize the meaning of the term "local." Any effort requires looking to multiple doctrines while considering the activities of multiple institutional actors. For example, the term "local" raises issues of the line between express and implied falsehoods. The claim that a food is local encompasses a range of meanings--for example, it was grown locally, it was packaged locally, local workers grew the food, the inputs used were local, the proceeds of the sale will be directed to or spent within the area, and so on. Additionally, the term may encompass a geographic range, from within the county to within the state to within the country. Some of these claims may be true; others, false. A false advertising suit (187) faces the difficulty of determining which meanings are perceived by the intended audience, but that analysis assumes that the use of local may encompass a range of meanings.

Our advocacy group moves up the line and attempts to secure an official definition of local. Here, it will have to account for a government regulator. Now the goal is to fix meaning broadly, rather than to deem a particular message as being within or without a range of permissible meanings. The desired official, fixed definition may become a double-edged sword, potentially excluding members of the enacting coalition. Where once a range of meanings could satisfy a sense of what it means to be local, (188) the term's meaning will likely become more circumscribed, presenting issues of under- and overinclusion and a differing calibration of the rules/standards divide (not to mention the risk that once the battle at the regulatory level begins, interests with a contrary definition of local might prevail). That change will, in turn, filter back down to other consumer information regimes, as consumers who attach one meaning to the term as part of everyday language may adopt another in response to an official interpretation.

Or we can move down the line to the trademark solution, forming a certifying body to promote a specific vision of the meaning of local. These efforts would face the collective action problem of establishing a certifying entity with (1) the requisite independence from the sellers it would benefit, and (2) the resources to produce a signal strong enough to be heard above the noise generated by those promoting differing definitions. Because not all competing labels are legitimate, (189) the amount of competing noise would also depend on other regimes and actors. That is, does the FTC crack down on loose certification practices? Does state law allow a remedy when consumers are deceived by lax certifiers? (190)

Though not intractable, these issues underscore the fact that the complexity of the task reaches beyond choosing the optimal definition of local. They also create challenges for administering trademark law.

2. How Should Trademark Cases Be Decided?

The Lanham Act's text is open-ended in many respects, inviting some judicial creativity, (191) and much of trademark law has been made in the common law style. The question of how much that method should persist and guide future trademark developments is contestable both normatively and descriptively. (192)

The debate over whether case-by-case adjudication or broad legislation produces optimal policy is familiar. …

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