Zombie (Trademarks) From Outer Space

Belle Borovik, Zombie (Trademarks) From Outer Space, 24 Intell. Prop. & Tech. L. J. 2, 323 (2020)

27 Pages Posted: 12 Feb 2021

See all articles by Belle Borovik

Belle Borovik

University of San Francisco School of Law

Date Written: March 1, 2020

Abstract

The living dead (Trademarks) are among us!

Taking advantage of the lack of clear statutory guidance under federal Trademark law, these Zombie Trademarks are feeding on the residual goodwill of and praying on consumer nostalgia. As the Zombie Marks virus is permitted to spread, a paralyzing thought must grip those in the business of protecting Intellectual Property rights—how would one prevent a Zombie Marks Apocalypse in the unregulated territory of Outer Space?

Outer Space is the new economic frontier. New private space flight options, including space tourism, partnership between the private sector and NASA to shuttle humans to-and fro the International Space Station, NASA’s plan to return humans to the Moon (with the newly discovered water ice on its surface), and, finally, the crewed military habitats resulting from the U.S. Space Force, will undoubtably bring about an explosion of commercial activities in low-earth orbit. In the absence of any explicit prohibition on reviving the living dead marks in International law, the herders of the Zombie Marks will be shielded by the laissez-faire effect of the Lotus principle in the res communis of Outer Space. By way of the National Treatment Principle, U.S. Trademark law applies to the producers launched from the U.S., and in its current state, the law does not protect consumers or previous owners from the Zombie Marks Apocalypse.

This seminal note explores the issue of protection (or lack thereof) of abandoned Trademarks with residual goodwill in Space Commerce, proposing that the Remote Use Doctrine (amended to exclude the now-moot good faith requirement), and Section 5 of the Federal Trade Commission Act (amended to include a mandatory affirmative disclosure requirement) offer the most effective basis for protection of consumers and brand owners alike.

Keywords: trademarks, outer space, IP, intellectual property in outer space, space force, space commerce, space tourism, abandoned trademarks, zombie trademarks, residual goodwill, low earth orbit, bona fide use, trademark use, NASA Interim Directive, good faith, Lotus Principle, Section 1125(a)(1)(B)

Suggested Citation

Borovik, Belle, Zombie (Trademarks) From Outer Space (March 1, 2020). Belle Borovik, Zombie (Trademarks) From Outer Space, 24 Intell. Prop. & Tech. L. J. 2, 323 (2020), Available at SSRN: https://ssrn.com/abstract=3744270

Belle Borovik (Contact Author)

University of San Francisco School of Law ( email )

San Francisco, CA
United States

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