Matthew Bodie, ‘Trademark’s “Ship of Theseus” Problem’

ABSTRACT
Philosophers have long puzzled over the identity of the ship of Theseus. Preserving the boat over time, the ancient Greeks would remove its wooden planks as they rotted and replace them with new planks. The question arose: was this still the same ship? The problem hits at an issue that is critical to trademark law but has largely been overlooked: namely, what is the identity of the entity that holds the trademark?

Trademark has a straightforward answer: it assigns the mark to the business entity and then largely provides absolute discretion to use the mark (or prevent others’ uses) as it wishes. The law cares little about whether the entity is still representative of the mark over time. This approach is problematic. It allows marks to drift away from their original meaning and become vessels for brand expansion. The corporate holder can then exclude all other players, particularly former employees, from using the mark to which their hard work contributed. Ultimately, the legal entity can peel away every layer of connection between the mark and its creation and yet still wield it in commerce.

The essay sketches out two potential pathways to address this ongoing dilemma: a more attentive examination of the connection between mark and firm, or a relaxation of the exclusive control that mark holders currently have over use.

Bodie, Matthew T, Trademark’s ‘Ship of Theseus’ Problem (April 16, 2021). Southern California Law Review Postscript, Summer, 2021.

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