Trademark law has always played second fiddle to patent law. This was true when all forms of intellectual property law were seen as quaint tributaries to the mainstream of commercial law. It has remained true as the information economy outpaces legal doctrine.
Creative lawyers convinced sympathetic judges to grant overly broad protection to some rights holders- at the expense of emerging competitors and consumers. Having recognized this fact judges are now engaged in the process of cutting back those rights.

The attack on entrenched patent law principles has been widely noted. But the same reordering is underway with respect to trademark law. Perhaps the most visible expression of this reordering has been the more or less uniform conclusion that firms can purchase names used by their competitors as trademarks and use those terms to direct potential customers to their website. A small ocean of electronic ink has been used to debate the judicial correctness of this reordering.

Most recently 16 of the most visible trademark scholars met to discuss the meaning of the words "use in commerce". Several younger scholars, including Eric Goldman, Rebecca Tushet and Mark Lemley, met to explain and defend positions they have already taken on how widely or narrowly use in commerce should be construed.

A moment in the sun for trademark law? Perhaps. An opportunity for scholars to influence the judicial or legislative process? Not likely.

But don't take my word for it. Rather, I commend to you the words of Judge Richard Posner. If you don't recognize this name I urge you - no I dare you- to conduct a Google search. Suffice it to say that perhaps no other judge is more qualified to comment on how scholarship influences the process of judging.

Jude Posner minces no words- he baldly states contemporary academic critique of judges has little impact on judicial behavior. He also states that the primary audience for academic critique is others in the academy.

Which leads me to ask ( albeit uncomfortably): if Posner is correct - what is the compelling reason to study law in the same way that one might study art history? And what real value results from listening to the songs being sung by a chorus of singers who are not allowed into the concert hall?


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