Trademarks: Famous is as famous does

Mark Lemley
@MarkLemley

My latest paper offers a simple idea to get trademark owners to stop suing parodists, satirists, and other expressive users: make evidence of such independent referential uses of a mark a condition for proving the mark famous.https://t.co/coHQ8X7oOO— Mark Lemley (@marklemley) September 5, 2018

Trademarks Are Magic
@TimberlakeLaw

The sneaky genius of such an approach is that:

1) Perhaps a statistically insignificant number of marks are actually famous, but

2) they all think they are

which could actually lead to self-policing policing of #trademarks

#carrots #notsticks https://t.co/iA8gQQQr44— Trademarks Are Magic (@TimberlakeLaw) September 5, 2018

Great idea, endorsed by two of my favorite trademark brains.

One comment

  • What a lovely prank! Unfortunately I think an aggressive trademark owner would just as well make their dilution claims in case #40 (involving claims based on dilution, requiring a showing of fame) by displaying the trophies from cases #1-39 involving parodists.

    Isn’t the recently* deceased body of a parody equally good evidence of referential use as a live parody in the wild?

    * OK, OK — if case #40 is filed 30 years after the last parody was shut down, maybe the mark isn’t famous anymore.

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