The Innovation Law & Theory Workshop
Presents
Professor Mark McKenna
Associate Professor of Law, Notre Dame Law School
Topic: Testing Modern Trademark Law’s Theory of Harm
Date: Wednesday, March 11, 2009
Time: 12:30 p.m. – 2:00 p.m.
Place: Flavelle Dining Room, Flavelle House, 78 Queen's Park
Description: Modern scholarship takes a decidedly negative view of the scope of trademark protection. Scholars have primarily criticized doctrinal innovations like initial interest confusion and dilution, while also taking courts to task for failing to develop and apply clear defenses. But beneath all the criticism lies overwhelming agreement that consumer confusion causes remediable harm. This easy acceptance of the harmfulness of confusion is a problem because it operates at too high a level of generality, ignoring important differences between different types of relationships about which consumers might be confused. This paper begins the process of distinguishing types of confusion by focusing on the supposed harms to producers caused by confusion regarding the source of non-competing goods. More specifically, this paper evaluates the underlying assumptions arguments in favor of protection against the growing marketing literature regarding brand extensions and brand alliances. It demonstrates that uses of a mark for non-competitive goods or services are unlikely to impact negatively the mark owner’s reputation for quality. On the other hand, the literature provides empirical support for market pre-emption and free-riding arguments. From the perspective of mark owners, then, trademark rights against non-competing goods bear striking resemblance to derivative work rights recognized in copyright law.
Bio: Mark McKenna is Associate Professor of Law at Notre Dame Law School. He teaches and writes primarily in the area of intellectual property. Particularly recognized as a leading junior scholar in the trademark area, Professor McKenna has also written about copyright and right of publicity issues. He joined the Notre Dame Law School faculty on a permanent basis in the Fall of 2008 after visiting for a semester in the Spring of 2008. Professor McKenna graduated from the University of Notre Dame in 1997 with a degree in Economics and earned his J.D. from the University of Virginia School of Law in 2000. After graduating from law school, Professor McKenna practiced law with an intellectual property firm in Chicago, litigating trademark and copyright cases and advising clients on a variety of intellectual property issues. He joined the faculty of the Saint Louis University School of Law in 2003, where he taught until joining the faculty at Notre Dame.
Lunch will be provided - No RSVPs are required
For further information please contact Andrea Slane at andrea.slane@utoronto.ca
