Category: Trademarks

By Posted on Posted in Blog, Copyright, Patent, Trademarks No Comments

When lawyers say that hard cases make bad law, they usually mean that extreme or unusual circumstances provide poor basis for making legal rule that would have to be applicable to a wider range of more common cases. Sometimes the phrase describes cases that involve a party whose hardship draws sympathy even if its legal case is weak. But sometime hard cases can make good law, when they present smart judges with difficult dilemmas and force them to think hard and deep on their ruling and its broader consequences. Yet courts don’t always choose the cases that come before them …

Google v. Equustek: Unnecessarily Hard Cases Make Unnecessarily Bad Law Read more »

By Posted on Posted in Blog, Copyright, Featured, Patent, Trademarks 1 Comment

I was invited to participate in a two-day conference in Toronto, organized by the Conference Board of Canada. The conference’s title is Business Innovation Summit 2013: Innovation for the Corporation. I was asked to be on a panel debating the following hypothetical motion: “IP Protection Should Be Strengthened to Stimulate Innovation and Commercialization.” Arguing for the motion were Sheldon Burshtein, a partner at Blake, Cassels & Graydon LLP, and  Mark Fleming, Director, Federal Affairs and Health Policy, Janssen Inc. Canada. Sam Trosow and I were invited to argue against it. And we did. Before our debate began, the organizers distributed clickers and asked the audience to …

“IP Protection Should Be Strengthened to Stimulate Innovation and Commercialization”: Motion Denied Read more »

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Modern trademark scholarship and jurisprudence view trademark law as an institution aimed at improving the amount and quality of information available in the marketplace.  Under this paradigm—known as the search-costs theory of trademarks—trademarks are socially beneficial because they reduce consumer search costs, and as a consequence provide producers with an incentive to maintain their goods and services at defined and persistent qualities. Working within this paradigm, my recent paper refines the search-cost theory of trademarks.  It highlights an important point whose significance hitherto has largely escaped notice, namely that reducing search costs and providing incentives to maintain quality are distinct functions, although they …

The Linguistic and Trust Functions of Trademarks Read more »