This course will introduce students to the federal Lanham Act and related common law doctrines designed to protect against consumer confusion and appropriation of commercial goodwill. In addition to the technical requirements for trademark eligibility, registration, and infringement, we will consider the constitutional and economic underpinnings of trademark protection and evaluate current trends toward the "propertization" of trademark law. We will also review and assess the reasons that trademarks can lose protectable status (e.g., becoming generic) and examine best practices in selecting, adopting and enforcing rights in trademarks.
By the end of the semester, you should be able to:
- Differentiate between trademark, copyright, patent and trade dress laws;
- Identify what designations can function as trademarks and understand the requirements for trademark protection;
- Assess the degree of protectability of trademarks depending on their distinctiveness;
- Understand the requirement of “use in commerce” for trademark protection, and evaluate whether particular usages of trademarks meet that requirement;
- Grasp the process of obtaining federal registrations for trademarks;
- Analyze whether uses of junior trademarks infringe the rights of owners of senior trademarks (i.e., whether there is a “likelihood of confusion”);
- Evaluate whether a trademark is famous, and whether uses of other trademarks constitute dilution of famous marks by either blurring or tarnishment;
- Determine whether a trademark owner has lost its rights in the mark, either through abandonment or “genericide”;
- Identify and make arguments concerning defenses to trademark infringement and dilution (e.g., “fair use”); and,
- Articulate the interplay and conflicts between trademark law and the First Amendment.