Trademark Law and Theory: Reform of Trademark Law, Edward Elgar Press (Graeme Dinwoodie & Mark Janis, eds., Forthcoming)
20 Pages Posted: 6 Aug 2018 Last revised: 9 Oct 2018
Date Written: July 1, 2018
This book chapter, for a volume on reform of trademark law, considers the theoretical grounding of the federal anti-dilution statute in strict anti-misappropriation norms, and the courts' resistance to implementing that underlying theory in practice. It then offers an alternative framework grounded in the author's previously outlined theory of trademark law as a system to facilitate the making and keeping of promises between producers and consumers. Specifically, it proposes limiting the scope of trademark rights to those competitive uses that interfere with the mark owner's ability to credibly make and keep a promise to a consumer, where that promise is one the mark owner could perform without the compelled co-operation of any other person. This framework, like the judicial check on the federal dilution statute, results in a collapse of the dilution and infringement causes of action, but has the advantage of doing so in a theoretically coherent way.
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