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40 Harv. L. Rev. 813 (1926-1927)
Rational Basis of Trademark Protection, The

handle is hein.journals/hlr40 and id is 859 raw text is: RATIONAL BASIS OF TRADEMARK PROTECTION THE RATIONAL BASIS OF TRADEMARK PROTECTION ' - HERE is no part of the law which is more plastic than un- - fair competition, and what was not reckoned an actionable wrong 25 years ago may have become such today. I There is no fetish in the word 'competition.' The invocation of equity rests more vitally upon the unfairness. 2 Many earlier dicta, probably some earlier decisions, are not now safe guides. I These vigorous judicial expressions of impatience with the old theories of trademark protection are indicative of a desire to keep abreast of and to serve the needs of modern business. They reflect a con- sciousness of the need for breadth and liberality in coping with the progressive ingenuity of commercial depravity. But forward strides in trademark protection are being attained by appeals to good conscience and judicial sensibilities rather than to strictly legal principles derived from a critical analysis of the real tort involved. Those judicial sensibilities, however, are them- selves predicated upon certain historical preconceptions as to the nature and function of a trademark and as to the necessities for its protection. It is with the present validity and practical implica- tions of these preconceptions that this paper is concerned. I The orthodox definition of the primary and proper function of a trademark is that given by the Supreme Court of the United States in the leading case of Hanover Star Milling Co. v. Metcalf: I Ely-Norris Safe Co. v. Mosler Safe Co., 7 F. (2d) 603, 604 (C. C. A. 2d, 1925), per Learned Hand, Y. See (1926) 26 COL. L. REv. I99; N. Y. L. J., Sept. 28, 1926, at 2068. The decision of the Circuit Court of Appeals was reversed, on a different construction of the pleadings, in 47 Sup. Ct. 314 (U. S. 1927). 2 Vogue Co. v. Thompson-Hudson Co., 30o Fed. 509, 512 (C. C. A. 6th, 1924), per Denison, J. 3 Potter-Wrightington v. Ward Baking Co., 288 Fed. 97, 6o3 (D. Mass. 1923). See International News Service v. Associated Press, 248 U. S. 215, 240 (1918); Mar- garete Steiff, Inc. v. Bing, 215 Fed. 204, 206 (S. D. N. Y. 1914); Havana Cigar & Tobacco Factories, Ltd. v. Oddenino, 41 Rep. Pat. Cas. 47, 56 (1923). Cf. Haines, Efforts to Define Unfair Competition (1919) 29 YALE L. J. X, 21.

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