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Back to the Future: Rediscovering Equitable Discretion in Trademark Cases

17 Pages Posted: 28 Mar 2010  

Mark P. McKenna

Notre Dame Law School

Date Written: 2010

Abstract

Courts in recent years have increasingly made blunt use of their equitable powers in trademark cases. Rather than limiting the scope of injunctive relief so as to protect the interests of a mark owner while respecting the legitimate interests of third parties and of consumers, courts in most cases have viewed injunctive relief in binary terms. This is unfortunate, because greater willingness to tailor injunctive relief could go a long way to mitigating some of the most pernicious effects of trademark law’s modern expansion. This Essay urges courts to reverse this trend towards crude injunctive relief, and to re-embrace their equitable discretion as a means of achieving greater balance in the trademark system.

Keywords: trademark, injunction, equitable, remedy, unfair competition

Suggested Citation

McKenna, Mark P., Back to the Future: Rediscovering Equitable Discretion in Trademark Cases (2010). Lewis & Clark Law Review, Vol. 14, 2010; Notre Dame Legal Studies Paper No. 10-08. Available at SSRN: https://ssrn.com/abstract=1577914

Mark McKenna (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
(574) 631-9258 (Phone)

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