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1 IP Theory 1 (2010)

handle is hein.journals/ipthey1 and id is 1 raw text is: theorv largi Vou 1e ssu )ai The Trademark Sc to understanding and productive and stimul own ideas with points a judicial approach to re is important to underst Section I will discuss then suggest that courts infringement claims to a this proposal in the histor- Lanham Act, and then ex this more limited cause of holars Roundtable participants discussed a wide range of appi limiting the ever-increasing sprawl of trademark rights. It aing discussion. In this essay, I would like to combine some nd suggestions made by the other participants, to sketch out a P gulating the sprawl. Before discussing a potential solution, how and the nature of the Droblem, and some of itS Drimary causes. was of M, ossibl< the problem and set the stage for my proposal. Section IIwill elegate certain particularly problematic new forms of trademark passing off/associational marketing evaluation. It will anchor c development of the common law and courts' construction of the lore some of the rules, presumptions and defenses that might cabin action. The Problem The courts developed trademark law to serve a limited purpose: to facilitate efficient competition by enabling merchants to adopt a particular word or symbol to identify their goods, and prevent other merchants from using a confusingly similar word or symbol to identify their own goods, when doing so would be likely to cause mistaken purchases. These limited rights in words and symbols ensure that consumers can easily and quickly identify and distinguish the goods of competing producers and effectively exercise their purchasing preferences. This reduces consumer search costs and enables consumers to reward quality through repeat patronase. The potential for repeat Datronaee in turn, enables producers to UIIivestielII Uouct U illa Ius elIonu arnia, Hastings College o twoodie, the DePaul Univi gy, Prof. Mark D. Janis,(, .Thanks, too, to Vadim nformation Technology ft ,. who took comprehensi great help, as I manag sundtable Darticipants and the Indiana University Shifrin, Esq., Assistant Di r his flawless planning an( ve notes of the Roundtab ast St otes at iSCUSSil Del essor s Ile LUSt LUf qU >r Dr Inte Ls, as >si dtable possibb perty Law & I .becca Tushnei bl De le discussions airport on my ind ideas. ri n i ie 1 a

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