Fear and Loathing in Trademark Enforcement

12 Pages Posted: 31 Mar 2012 Last revised: 6 Jul 2012

See all articles by Jeremy N. Sheff

Jeremy N. Sheff

St. John's University School of Law

Date Written: March 29, 2012

Abstract

This paper attempts to give an overview of the debate between trademark law practitioners and trademark law scholars over the proper scope of enforcement. It first attempts to identify potential motivations for what one might consider overbroad enforcement -- what I refer to as "fear" and "loathing" -- and describes the relationship between those motivations and extant doctrine. It then identifies the main sources of disagreement between academic commentators and practitioners over the scope of enforcement: whether a particular motivation is properly categorized as fear or loathing, and whether a particular fear is justified given our understanding of consumer behavior and legal doctrine. The paper concludes by suggesting that trademark practitioners, notwithstanding their financial and professional incentives to the contrary, ought to seriously consider whether a particular fear underlying a potential enforcement action is in fact justified in the course of counseling their clients as to the advisability of that action, and should moreover consider the possible negative consequences for their clients of acting on such fear.

Suggested Citation

Sheff, Jeremy N., Fear and Loathing in Trademark Enforcement (March 29, 2012). Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, p. 873, 2012, St. John's Legal Studies Research Paper No. 12-0009, Available at SSRN: https://ssrn.com/abstract=2031164

Jeremy N. Sheff (Contact Author)

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