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2014 U. Ill. L. Rev. Online 25 (2014)
Overlapping Trademark and Copyright Protection: A Call for Concern and Action

handle is hein.journals/uilro2014 and id is 25 raw text is: OVERLAPPING TRADEMARK AND COPYRIGHT PROTECTION: A CALL FOR CONCERN AND ACTION Irene Calboli* I. INTRODUCTION In this Article, I tackle a controversial topic-the overlapping trademark and copyright protection that can apply to creative works such as fictional characters, pictures, video clips, and songs. In particular, I highlight the possible negative consequences that granting trademark protection to these works-concurrently or after the expiration of copy- right protection-can have on the societal bargain upon which copyright protection is built and justified. To date, scholars have only limitedly ad- dressed these consequences, and more academic attention is needed in this area.' In contrast, the advantages of trademark rights in creative works (in their entirety or in separated features of the works) are well known to practitioners who routinely advise their clients to secure both sets of protections as it is in their clients' best interest to have access to both, since these rights aim to protect different subject-matter and re- * Professor of Law, Marquette University Law School; Visiting Professor, Faculty of Law, Na- tional University of Singapore. I thank the Law Review for the invitation to contribute to the inaugu- ral issue of the online companion of the Law Review. In this Article, I summarize the argument that I recently developed in Overlapping Rights: The Negative Effects of Trademarking Creative Works, in THE EVOLUTION AND EQUILIBRIUM OF COPYRIGHT IN THE DIGITAL AGE 52 (Daniel J. Gervais & Susy Frankel eds., 2014). I am gratleful to the participants of the Works-In-Progress in Intellectual Property Colloquium, Santa Clara University School of Law, Santa Clara, California, February 7-8, 2014 for their comments. I also thank Ahmed Abdel Latif, Margaret Chon, Susy Frankel, Daniel Ger- vais, Jane Ginsburg, Eric Goldman, Lisa Ramsey, David Tan, and Rebecca Tushnet for insightful con- versation and suggestions on my ongoing research on this topic. 1. In this respect, see Graeme W. Austin, Reproduction Rights in US Trade Mark Law, in THE LAW OF REPUTATION AND BRANDS IN THE ASIA PACIFIC 119 (Andrew T. Kenyon, Ng-Loy Wee Loon, & Megan Richardson eds., 2012); Jane C. Ginsburg, Of Mutant Copyrights, Mangled Trade- marks, and Barbie's Beneficence: The Influence of Copyright on Trademark Law, in TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH 481 (Graeme B. Dinwoodie & Mark D. Janis eds., 2008); Mark P. McKenna, (Dys)functionality, 48 HOUS. L. REV. 823 (2011); Mark P. McKenna, Dastar's Next Stand, 19 J. INTELL. PROP. L. 357 (2012); Viva R. Moffat, Mutant Copy- rights and Backdoor Patents: The Problem of Overlapping Intellectual Property Protection, 19 BERKELEY TECH. L.J. 1473, 1527-30 (2004); A. Samuel Oddi, The Tragicomedy of the Public Domain in Intellectual Property Law, 25 HASTINGS COMM. & ENT. L.J. 1 (2002). 25

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