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Trademarks and Unfair Competition: Law and Policy

Trademarks and Unfair Competition: Law and Policy - Graeme B. Dinwoodie,  Mark D. Janis The unfortunate thing about this book is that it feels the need to exhaustively go through the entire history of every topic within trademark law. I mean, I get that they are all relevant, but you just get these pedantic casebooks sometimes that start listing all these rules and going into all this elaborate reasoning and then are like, “Oh, yeah, remember how we told you that stuff? Well, that’s all bad law now, don’t ever use that.” I’m not saying I’m not interested in how the law developed, but I kind of just want to voluntarily go into those areas. Also, I’d like there to be some kind of warning before I read useless cases, like on Westlaw. I like the big red stop sign and yellow flag system. This book would benefit from that kind of thing. Otherwise, this book is fine. This area of law is fine. Neutral response.

Trademarks is the area of intellectual property law where you don’t have a right in gross. The other areas of intellectual property law (correct me if I’m missing something) are copyrights and patents. Copyrights and patents are protected under the Constitution, and once you have them, you have them. You have something more solid. I kind of think this analogy is useless, but with property they always say rights to property is a “bundle of sticks.” So, the point is (I think) that ownership is more than one thing. Like, I can own property, but lease it, and then I’ve given some of the sticks in my bundle to the person leasing the property. I don’t have all of the rights to my property anymore. It’s a weird analogy, but it’s my understanding that it’s what they mean by a “right in gross.” Anyway, copyrights and patents are like a bundle of sticks, but trademarks is not. Trademark rights only happen through use of a mark in commerce (Imma give a little shout out right there to my friend the Commerce Clause). So, if you stop using a mark, the right disappears. With copyrights and patents, you own the rights regardless of anything else that you do. (I’m kind of lying about that because copyrights and patents both have end dates, where trademarks are forever – as long as you keep using them.)

The point of trademarks is that they identify the source of goods. The idea is that mark owners spend a lot of money getting goodwill with customers, and customers like to be able to rely on the quality of goods. Trademarks are a signal to customers of the quality of goods. So, they protect the seller who has invested in goodwill and the consumer who wants a quality product.

You probably know already, but trademarks, copyrights, and patents all cover pretty different concepts. I haven’t taken copyrights or patents, so I can’t be very detailed, but the idea is that copyrights cover “original” creative works and patents cover inventions. Trademarks, on the other hand are things like logos. They can also just be phrases like WikiMagVag™ or colors, like the Tiffany blue. They can be the way a product is packaged or the way a restaurant is decorated. Stuff like that. Source-identifying stuff. The NBC chimes. If you see the ™, it means that the trademark is owned in common law, but not registered. If you see the ®, it means the mark is registered. I’ve probably talked about the difference between common law and statutory law a lot of other places, so I won’t explain it again here. Basically, ™ is useful and not bad at all, but ® is more solid in a lot of ways. You have to actually apply for an ®, though, and ™ still counts.

Problems come up with trademarks when there is a likelihood that consumers will confuse one mark with another or when someone tries to register a mark and someone else doesn’t think they should be able to do so. Then you have to consider whether a mark is actually distinctive enough to identify a source, whether it is actually functional and necessary for other people to compete, and a bunch of other stuff. You can read the book to find out the rest. It has pictures! They are not very exciting, though. Except there is one picture that says FCUK because there was an issue over whether that was an offensive mark. So, I like that.

Unfortunately, this book is not one I would recommend for teaching yourself the law. I mean, you could totally teach yourself trademark law with this book. God knows, my brain was absent for most of this semester, so that’s what I did. It’s just that I think trademarks is one of those topics that is interesting in practice and kind of boring in theory. Actually, maybe I think it is a little bit of a drag in practice, too. It has a little bit too much of a he-touched-my-toys flavor to get me really passionate. Please, kids, there are enough marks for all of us. Can’t you get your own?