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Publication Date

January 2014


We generally think about trademark law as a branch of intellectual property law. Because trademark law regulates marketplace information, however, its closer peers may be other consumer information regimes — e.g., false advertising law and FTC regulations — instead of incentive-based IP laws like copyright and patent. This article considers some implications of this observation.In many cases optimal trademark policy depends on ascertaining the state of play in another consumer information doctrine. That may be less simple than it sounds. Trying to determine how another body of law treats a parallel issue presupposes that we know where to look. We might not. Trademarks are just a small part of a larger consumer information system. The various components of this system, and the laws that govern them, interact in opaque ways, complicating analysis. The resulting complexity has consequences for trademark’s future, particularly the question of how responsibility for its development should be divided between judges and legislators. The difficulty of anticipating interactions between consumer information doctrines threatens some of the purported benefits of a judge-driven, “common law” approach to trademark. If we nonetheless want to preserve a robust judicial role in shaping trademark law, courts should try to accommodate consumer information law’s variety by simplifying trademark issues. Doing so would reduce the need for cross-doctrinal assessments, but it is not an easy task. Trademark law’s reach has been growing for decades, leaving much to simplify.The balance of the article explores one approach to simplification — the prospect that trademark law would benefit from “offloading” some of its expanding scope to other consumer information regimes. Claims at trademark’s peripheries often address subject matter at the core of other doctrines. These non-trademark doctrines will have developed rules and standards calibrated to prevent overly broad causes of action. When such claims migrate to trademark, however, their limits may not translate. Leaving these checks behind raises accountability concerns, particularly when those understandings were the product of political settlement. Worse, once let loose in trademark law and free of the doctrines that would keep their numbers down, the imported claims may assume an unexpected scope. Trying to force them into now-ill-fitting doctrinal boxes produces instability that undermines trademark’s coherence and transparency. Offloading peripheral causes of action from trademark into more appropriate regimes therefore offers an avenue for improving the quality of trademark doctrine as well as the consumer information system as a whole.

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