Tabberone is pronounced tab ber won |
|
The Tabberone™ Archives These articles concern what we consider major trademark and copyright issues. They are usually reproduced with the original source referenced. Bear in mind, these articles are copyrighted and commercial use without permission of the authors may be considered infringement. The intended use here is educational, commentary and non-commercial. The reason they are reproduced in the Tabberone™ Archives, as opposed to just providing a link, is because links disappear and pages are removed. That presents a messy confirmation process that is annoying to the browser (you) but also presents a credibility issue. We do not claim any rights in these pieces. Do not regard the absence of a copyright statement or © to mean the article is not copyrighted. Some sites do not have a copyright statement. When an article or a comment is posted on the internet by the copyright owner, the owner is seeking a world-wide, 24/7 audience; sometimes for a limited amount of time, sometimes indefinitely. In essence, an internet posting intentionally relinquishes one's copyright for exclusivity because the owner has posted it on the internet to been seen by everyone, everywhere. The Tabberone™ Archives non-commercial duplication of the posting is simply a continuance of the original wishes of the copyright owner. We post these articles for reference, for commentary and for confirmarion of our position. |
Source: http://trademarktroll.blogspot.com/2007/09/do-you-want-doctrinal-feedback-or.html |
DO YOU WANT DOCTRINAL FEEDBACK OR 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. 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. posted by dick troll @ Thursday, September 13, 2007
|