In his essay, ‘Trademark as a Property Right’, Adam Mossoff argues that trademark ‘is’ a property right, because it can be, has been, and should be conceptualized as analogous to ‘use-rights’ in physical property. This response to Mossoff’s essay agrees with his historical claim that courts have analogized trademarks to use-rights, and also agrees with his descriptive claim that trademark doctrine can be analogized to use-rights. But it questions his normative claim that trademarks should be understood in relation to that analogy. While those who accept deontological and specifically Lockean theories of trademark will find Mossoff’s normative claim compelling, those who accept consequentialist theories of trademark will not.
Frye, Brian L, Metaphors on Trademark: A Response to Adam Mossoff, ‘Trademark as a Property Right’ (September 9, 2018). Kentucky Law Journal, forthcoming.