Gordon, Wendy J., The Yale Law Journal
Ralph Sharp Brown crossed out the "Junior" that followed his name after his father died. In explanation of the hand-altered stationery, he said (if my recollection holds), "I'm the only one left now." Now, after Ralph's death, there may remain no Ralph Sharp Browns. But there are many law teachers who continue to wage the campaign that Ralph made his life work: to save an interdependent society from unnecessary and stagnating restraints on liberty.(1) In the intellectual property area, Ralph sought to teach us that it can be both fight and necessary to give individuals the liberty to "reap without sowing," and that we should fear the excessive protectionism that can result from an overblown and ungenerous sense of what's "due" to property claimants.
Ralph himself was far too modest to claim that his goal was "saving society" and much too kind to deride his opponents' broad sense of property fights as immature or grasping. But consider the article reprinted herein, Advertising and the Public Interest.(2) In it, Ralph identified two competing premises for the law of unfair competition.(3) One premise was that the law should prohibit all "poaching,"(4) all "reap[ing] where one has not sown."(5) The other premise was that the law should follow "`the basic common law policy of encouraging competition'"(6) and imitation. Ralph initially pretended to be agnostic between these premises,(7) but he soon revealed his true preference: fostering a liberty to copy.(8) He placed a heavy burden of persuasion on those who sought exceptions.
By no means did Ralph oppose all such exceptions; he actively supported many of the restraints that intellectual property law imposes. For example, his article made clear that society will be better off in the long run if trademark law can enjoin a stranger's deceptive and confusing use of an established mark.(9) The Advertising piece even takes several steps that, though uncontroversial today, were pro-plaintiff when the piece was written.(10)
That Ralph was the opposite of a fanatic can also be seen in the interstitial nature of the suggestions he made to limit plaintiffs' rights. In the Advertising article, Ralph urged courts to require a plaintiff to make some meaningful showing that the "confusion" allegedly resulting from a defendant's use of a trade symbol would actually be material to consumer purchasing decisions.(11) Ralph also suggested that courts reject "the unwary purchaser" as a standard by which to measure likelihood of confusion.(12) Courts should instead restore the standard of "the reasonably careful purchaser," a creature more realistic and more discerning.(13) In sum, the courts should be a little less gullible about "confusion." The pieces by Mark Lemley and Jessica Litman in this Symposium highlight developments that in my opinion show that the legal system would have been much better off if Ralph's 1948 warning had been heeded.(14)
Ralph's final set of suggestions in the Advertising piece involved preserving, as the touchstone of trademark law, avoiding consumer confusion.(15) For him, advertising that carded information was valuable, while advertising that carded mere persuasive force was either pernicious or useless.(16) For Ralph, therefore, society had nothing to fear when a defendant's nondeceptive, nonconfusing use of a trademark diluted the mark's emotional punch, and the trademark owner had no normatively justifiable grounds for complaint.
Here Ralph's rhetoric was broad. One can see why: If consumer confusion is avoided by trademark enforcement, then such enforcement will increase social welfare. But as Felix Cohen had seen (and as Ralph praised him for so seeing),(17) absent such confusion the economic benefit from enforcing rights in trade symbols is debatable, even doubtful.(18)
Antidilution law purports to prohibit strangers from using famous marks even when the use threatens no confusion. …