I believe that the law expands and contracts over time. I hope to say more about this in the future. But for the moment please consider that intellectual property law- all forms of intellectual property law- is in a period of contraction. Two recent articles describe different ways in which trademark rights have become oppressive. The authors each suggest that the rights of trademark owners/holders should be cut back. And, based on the holdings of recent Supreme Court decisions it would seem that these commentators have a receptive audience for their views.

James Gibson, the Director of the Intellectual Property Institute at the University of Richmond,
School of Law, published an article in volume 116 of the Yale Law Journal titled, Risk Aversion and Rights Accretion in Intellectual Property Law. Gibson posits that due to what he calls doctrinal feedback intellectual property doctrine is inadvertently expanding entitlements and eroding the public's right of unfettered access.
Doctrinal feedback occurs when a marketer wishes to use the brand of another for commercial purposes. Should the marketer get permission or seek a license before such use? Rather than risk being charged with infringement a risk averse competitor will blur out a brand reference or seek some form of license from the owner- even when it is far from clear that any form of permission is necessary. This acquiescence then becomes a precedent that shapes the conduct of other competitors- who then feel obliged to seek permission to engage in similar conduct. Thus the otherwise unsettled question whether such permission is even necessary becomes clear- of course it is necessary because so many in the industry have genuflected to the rights of the brand owner- rights that become established when there may or may not be a legal basis to support them.

Professor Kenneth L. Port, in a draft article available on the Social Science Research Network, speaks to a different manifestation of this same phenomenon. In Trademark Extortion: The End of Trademark Law, Professor Port, director of intellectual property law studies at the William Mitchell College of Law, aims his pen directly at the Lanham Act, to conclude that far from being an unqualified success, the Act is used by trademark holders to distort competition by willy nilly suing competitors and thus either barring them from entry, increasing their cost of entry or making it more difficult for them to remain competitive. Professor Port's attack is based on a research project he has undertaken. With a methodology that would bring a smile to the face of any legal realist Professor Port demonstrates that the Lanham Act creates incentives for rights holders to engage in trademark extortion. His key insight is that since the 2001 recession damages awards, fees awarded, number of reported dispositive decisions have all decreased while the number of lawsuits filed has continued to increase.

I don't claim to understand the relationship between scholarly commentary and judicial decisionmaking- but these articles support the notion that a contraction of rights is either underway or needs to begin.


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