Abusive Trademark Litigation and the Shrinking Doctrine of Consumer Confusion: Trademark Abuse in the Context of Entertainment Media and Cyberspace
55 Pages Posted: 23 Sep 2003
Date Written: 2003
The wholesale expansion of trademark law in recent years has led to absurd and abusive lawsuits by trademark holders in the institutional entertainment industry, such as a recent suit by Fox News against the author of a book that used Fox's trademarked slogan "Fair and Balanced" in the book's title. Although the insurance industry has for years railed against abusive personal injury suits, less attention has been paid to the abusive use of intellectual property law by corporations seeking to protect company image and silence critics, satirists and parodies of corporate culture. The expansion of trademark law has taken the law away from the original purpose of protecting consumers from deception in the marketplace, and resulted in a shrinking of the marketplace of ideas and the public domain. Trademark law should not protect corporate personality at the expense of censoring communicative media such as film, music, and the Internet. Further, aggressive litigation tactics by the institutional entertainment industry are counterproductive to the industry, since institutional players such as film studios are not only owners, but also users of intellectual property. As users, restrictions on use by abusive suits can come back to haunt entities that need a robust public domain to produce product.
Keywords: intellectual property, trademark, first amendment, entertainment law
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