tag:blogger.com,1999:blog-5574479.post4778899524735443403..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: INTA Special Report: A Century of Trade Mark LawVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5574479.post-179020405579058622011-05-19T21:43:50.599+01:002011-05-19T21:43:50.599+01:00But I don't think that last bit is what Eric s...But I don't think that last bit is what Eric said.<br /><br />The questioner (ahem) responded to his earlier comment that actually was as follows: The statutory history of the Lanham Act and its predecessors goes back to a an antique, pre-social-sciences model of "likelihood of confusion." So too the dilution provisions of the statute, which although they are of much more recent provenance are still based on doctrines formulated 75-100 years ago.<br /><br />These models, Eric argued here (and has argued elsewhere of course) are obsolete. But Congress is essentially powerless to change them, because it seldom deals with serious questions of policy in this area but rather is caught up in the horse-trading or rent-seeking claims of stakeholders in the IP area.<br /><br />The courts, however, he argued, have to some extent softened the sharp edges of this antique thinking about consumer behavior via the device of the consumer confusion survey. Notwithstanding what a mess the jurisprudence is in this area (i.e., expert standards in trademark cases), given Congress's hopeless state in terms of policymaking here at least this aspect of thoughtful consideration of the empirical basis of a confusion claim presents a ray of hope.<br /><br />The question, then, which he subsequently responded to was: But shouldn't Congress, not the courts, make policy if we see that the statutory language once deemed sufficient to protect trademarks is obsolete? And besides separation of powers issues, isn't one by-product of judicial policymaking in the U.S. -- wildly inconsistent results across circuits and districts -- a serious policy problem in and of itself?<br /><br />He agreed with the definition of the problem but, as you say, he made a point of the fact that trademark and unfair competition are creatures of the common law, and of necessity will always involve judicial shaping and interpretation. But, again, he agreed with the questioner that inconsistency of results, as well as a degree of "interpretation" of the statute which at this point reaches a level so high as to implicate "doctrine" or "policy" (my words, not is), is not a formula for optimism about where this area of law is going and how those affected by it can predict legal outcomes and make appropriate choices in their own behavior.<br /><br />See what I'm sayin'?Ron Colemanhttps://www.blogger.com/profile/08971795311919587950noreply@blogger.com