This course is a two-credit introduction to U.S. trademark and unfair competition law. It covers federal trademark infringement and dilution, the tension between trademark rights and the First Amendment, the federal trademark registration process, policy grounds for refusing registration (such as disparagement), fair use of trademarks (including nominative uses, comparative advertising, and parody), and the right of publicity.
Course Specific Learning Outcomes
My goal is for students to develop the knowledge, skills, and judgment that are the foundation for becoming an excellent intellectual property lawyer. Whether a student aspires to be a litigator or a transactional lawyer, I hope that by the end of this course he or she will know how to advise clients on how to gain legal protection for their brands, assess risks of liability and recommend alternate paths, and advocate clients’ rights effectively and ethically. In particular, the student should be able to:
• Articulate how trademark law differs from copyright and patent law and the aspects of intellectual property that each of these fields protects.
• Explain what types of identifiers have the capacity to serve as trademarks and what the requirements for trademark protection are.
• Evaluate whether a designation, as applied to a particular good or service, is a protectable trademark (or service mark), taking into account the proposed mark’s distinctiveness or lack thereof, whether the proposed mark is functional, and the statutory bars to federal registration.
• Explain the requirement of “use in commerce” for trademark protection, and evaluate whether a particular usage of a designation meets this requirement.
• Generate, articulate, and evaluate arguments in support of or against a claim that a trademark infringes another trademark.
• Evaluate whether a trademark is “famous” within the meaning of the federal trademark statute, and whether another trademark is likely to dilute it by blurring or tarnishment.
• Identify and make arguments in support of defenses to infringement or dilution such as fair use.