‘Whittling Away at Trademark Law’s Notions of Harm’

Michael Handler, What Can Harm the Reputation of a Trademark? A Critical Re-Evaluation of Dilution by Tarnishment, 106 Trademark Reporter 639 (2016); available on SSRN. In recent decades, numerous scholars have challenged trademark law’s various conceptions of harm. Unlike copyright and patent law, trademark law positions itself as a harm-avoidance regime, rather than a mechanism for capturing economic rents. At least under the dominant theoretical model, the law seeks to promote competition by ensuring the accuracy and reliability of source-indicating symbols in markets. In practice, however, the harm narrative often breaks down under scrutiny. Recent articles have taken issue with the assorted harms that trademark law purports to prevent. From dilution by blurring to “irrelevant” confusion, critics have argued that at least some of the injuries targeted by trademark law are illusory … (more)

[Stacey L Dogan, JOTWELL, 30 January]

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