Use, Liability, and the Structure of Trademark Law

< return to Newsletter listings
< view firm updates and announcements

Trademark law is in trouble. Six years ago, Professor Lemley diagnosed the "death of common sense" in the courts' interpretations of the modern Lanham Act. Unfortunately, his assessment has proven only too true. Instead of a unified and well-integrated body of doctrine sensibly covering all aspects of commerce, the courts have over the past several years created a specialized "law of the horse" that applies to prevalent fact patterns arising in the Internet context. This species of mutant trademark law has "loosed trademark law from its traditional economic moorings" and drastically, unjustifiably extended its reach.