Lanham Act

Abstract: This article considers the marketing implications of the Federal Trademark Dilution Act (FTDA) of 1995. The FTDA, an amendment to the Lanham Act, will influence the manner in which marketing is practiced well into the twenty-first century. Although the FTDA is specifically concerned with protecting famous trademarks from being diluted—either by having their distinctiveness diminished or positive associations tarnished—by similar trademarks, its influence will not be limited to trademark or branding issues. Implications range from the allocation of advertising resources to the increased use of marketing research.

Abstract: In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting - uses that increase, rather than diminish, the flow of truthful, relevant information to consumers. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable "confusion" and by broadening the classes of people who can face legal responsibility for that confusion. And they have based their decisions not on the normative goals of trademark law, but on unexplored instincts and tenuous presumptions about consumer expectations and practices on the Internet. We argue that this expansionist trend in Internet trademark cases threatens to undermine a central goal of the Lanham Act - to promote fair and robust competition through reducing consumer search costs.

Abstract: This Edition comprehensively updates the previous Edition to take account of recent legislative, judicial and scholarly developments in all of intellectual property law and includes idea protection, trade secrets, right of publicity, designs and computer software-with attention to the patent law changes wrought by the America Invents Act. The casebook provides materials covering First Amendment limitations on I.P. rights, addresses emerging trends in Lanham Act section 43(a) and newly revised provisions of federal anti-dilution law. Other topics include Internet and domain names, secondary liability, safe harbors, and anti-circumvention provisions; expanded coverage of software protection and business method patents; and notes on comparative I.P doctrines.

Abstract: Background Advertising and the First Amendment The Goals and Evolution of Advertising Law The Effects of Advertising The Principal Advertising Laws Regulation in the Public Interest by the FTC Competitor Lawsuits Under the Lanham Act The FTC vs. the Lanham Act An Aside on Comparative Advertising Antitrust Analysis Antitrust and Advertising: Collusion Advertising as Exclusionary Conduct Conclusions and Recommendations The U.S. I.T.C.--Developing Advertising Law Toward A "New and Improved" Advertising Law References Appendices