Abstract

http://ssrn.com/abstract=2026030
 


 



Trademark Owner as Adverse Possessor: Productive Use and Property Acquisition


Jake Linford


Florida State University - College of Law

March 6, 2012

63 Case Western Reserve Law Review 703 (2013)
FSU College of Law, Public Law Research Paper No. 596
FSU College of Law, Law, Business & Economics Paper No. 12-6

Abstract:     
There is an ongoing debate over whether or not a trademark is “property,” and what the appropriate boundaries of such a property right might be. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property regimes and for trademark protection in particular. Others respond that a unified theory of property should be able to account for both real and intellectual property. Neither approach fully recognizes that property regimes are multifaceted. A close look at the critical features of particular regimes can pay unexpected dividends.

This Article reveals how the process of trademark acquisition resembles, in startling ways, acquiring title to real property through adverse possession. Both the trademark and adverse possession regimes base acquisition on the productive use of the property in question. This productive use must be sufficient to provide notice of the asserted property right to the public and competing claimants. A properly functioning productive use regime is valuable because such a regime is more likely to encourage an efficient initial allocation of property rights while also providing fairness-based limits on the scope of property rights. Recognizing the productive use structure in both regimes provides several significant insights. First, the productive use structure highlights the importance of the commercial strength inquiry as a use-based limitation on the scope of protection even for inherently distinctive marks. Second, the productive use structure also clarifies how and why rights in the trademark commons are more active and property-like than rights held in common over expired patents and copyrights. Third, comparing the regimes shows how adverse possession is, surprisingly, a more hard-edged or “crystalline” property regime than the relatively “muddy” trademark regime. Finally, this analysis inspires interventions for trademark and adverse possession law to bring them more in line with the productive use requirement, and to open space for public use and competition.

Number of Pages in PDF File: 67

Keywords: trademark, public domain, Golan, Eldred, secondary meaning, incontestability, commercial strength, likelihood of confusion, adverse possession, property rights, acquisition, rules v. standards, Locke, Blackstone, Penalver, Katyal, Strahilevitz, Fennell, Lemley, McKenna

JEL Classification: K11, O34, D23, O31, H41, M3

Accepted Paper Series


Download This Paper

Date posted: April 1, 2012 ; Last revised: May 8, 2013

Suggested Citation

Linford, Jake, Trademark Owner as Adverse Possessor: Productive Use and Property Acquisition (March 6, 2012). 63 Case Western Reserve Law Review 703 (2013); FSU College of Law, Public Law Research Paper No. 596; FSU College of Law, Law, Business & Economics Paper No. 12-6. Available at SSRN: http://ssrn.com/abstract=2026030 or http://dx.doi.org/10.2139/ssrn.2026030

Contact Information

Jake Linford (Contact Author)
Florida State University - College of Law ( email )
425 W. Jefferson Street
Tallahassee, FL 32306
United States
Feedback to SSRN


Paper statistics
Abstract Views: 850
Downloads: 96
Download Rank: 162,167

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.219 seconds