Footnotes (379)



Trademark Morality

Mark Bartholomew

SUNY Buffalo Law School

March 1, 2013

William & Mary Law Review, vol. 55, pp. 85-161, 2013
SUNY Buffalo Legal Studies Research Paper No. 2013-30

This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, there are also at work judicial assessments of highly charged questions of right and wrong. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decisionmaking, often operating without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly those deemed to insufficiently invest of themselves in the marketplace, results in an overbroad consideration of the defendant’s intent. Judicial conceptions of sexual propriety steer trademark dilution law. Loyalty to certain views and markers of nationhood explain judge-made rules that privilege particular meanings for national symbols over consumer welfare. These three examples show that moral intuition can produce very bad trademark doctrine. The Article concludes that moral concerns will inevitably influence judges but they will do less harm if, instead of being hidden behind economic rhetoric, they are brought to the surface and interrogated just like any other technique of legal argument.

Number of Pages in PDF File: 77

Keywords: trademark, intellectual property, morality, psychology, dilution

Open PDF in Browser Download This Paper

Date posted: March 3, 2013 ; Last revised: November 5, 2013

Suggested Citation

Bartholomew, Mark, Trademark Morality (March 1, 2013). William & Mary Law Review, vol. 55, pp. 85-161, 2013; SUNY Buffalo Legal Studies Research Paper No. 2013-30. Available at SSRN: http://ssrn.com/abstract=2227106

Contact Information

Mark Bartholomew (Contact Author)
SUNY Buffalo Law School ( email )
528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-5959 (Phone)

Feedback to SSRN

Paper statistics
Abstract Views: 791
Downloads: 146
Download Rank: 147,265
Footnotes:  379
Paper comments
No comments have been made on this paper

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.204 seconds