Towards Recognizing and Reconciling the Multiplicity of Values and Interests in Trademark Law
76 Pages Posted: 24 Mar 2012
Date Written: March 20, 2012
This paper argues that courts should follow the U.S. Supreme Court decisions in Winters v. National Resources Defense Counsel, Inc. and eBay, Inc. v. MercExchange, L.L.C. in curbing the "harmful effects" of so-called "trademark bullies" or "trademark extortionists" by limiting the grant of preliminary and permanent injunctive relief. Current trademark doctrine and policy fail to adequately account for all of the relevant interests and values implicated in trademark disputes, and the consumer search cost theory fails to provide adequate limits on the scope of trademark protection. Thus, courts should balance the relevant interests and values recognized by current trademark doctrine and policy and other concerns such as freedom of expression under the public interest test for injunctive relief. This paper also proposes that courts should not consider evidence of policing of a mark in, for example, determining the mark's strength.
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