Rethinking Trademark Law

Posted by Stephen M. Nipper at February 9, 2006 10:19 AM

Interesting thoughts via the INTA list yesterday (reposted here with author's permission):

Certain principles of trademark law seem at odds with each other. And no amount of judicial or legislative tinkering is able to properly account for their differences.

If we could start over and implement a new legal regime might we:

1. Take the public interest out of trademark law. Let local, regional or national consumer protection laws and regulations deal with consumer confusion. Then the private ordering of rights could be based solely on
rules of property- with dilution as the touchstone for measuring the rights associated with verbal and non verbal symbols.

2. Unchain the protection of brands from ongoing business goodwill. Let the law more easily recognize the value- if any- inherent in the symbols.

3. Bite the bullet and go to a first to file system

Dick Troll
Woodard, Emhardt, Moriarty, McNett & Henry LLP

Your thoughts?

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