The Modern Lanham Act and the Death of Common Sense

24 Pages Posted: 30 Jan 1999 Last revised: 6 Feb 2011

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Date Written: January 1, 1999


Trademark law has expanded dramatically in the last fifty years, with a number of trends combining to give trademark owners something they have never had before -- protection of marks akin to the protection given real property. Professor Lemley evaluates these changes, and suggests that they are not supported by the economic learning on the functions of trademarks and advertising. He argues that many of these legal developments are unwarranted, particularly the cases which give trademark owners power to prevent political and social commentary, or to own the trademark as a thing in itself.

Suggested Citation

Lemley, Mark A., The Modern Lanham Act and the Death of Common Sense (January 1, 1999). Yale Law Journal, Vol. 108, p. 1687, 1999, Available at SSRN: or

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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