Michael Grynberg, ‘Trademark Free Riders’, 39 Berkeley Technology Law Journal, (forthcoming, 2024), available on SSRN. American trademark scholars have almost uniformly decried the role of free riding in calibrating the scope of trademark rights. They have argued that the language of ‘reaping where you have not sown’ – to use the famous, but doctrinally discredited, agricultural metaphor of INS v Associated Press in 1918 – distorts trademark law and expands protection beyond that necessary to ensure consumers receive accurate information about the source of goods in the marketplace. Yet, there is a (relatively well-grounded) suspicion that, despite this almost universal scholarly condemnation, the impulse to protect mark owners against free riding remains a resilient force when courts decide trademark cases … (more)
[Graeme Dinwoodie, JOTWELL, 25 January 2024]
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