The Congressional Expansion of American Trademark Law: A Civil Law System in the Making
87 Pages Posted: 21 Jun 2005
In the last decade, the United States Congress has expanded the parameters of trademark protection. This expansion is couched in rhetoric, sometimes xenophobic in nature, which masks the real issue. This Article argues that this expansion is not warranted by either the economic, legal, or social justifications of the system; in fact, it undermines these justifications. The expansion is done at the behest of the trademark owners without apparent regard to the common law nature of the United States' trademark system and without due regard to third parties' equal but countervailing right to compete. In the end, as more and more rights become determined by registration rather than by use, the result of this expansion is to involuntarily harmonize American trademark law with trademark law of civil law nations.
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Suggested Citation: Suggested Citation