Source Significance: A New Framework For Evaluating Trademarks

A thing’s ability to distinguish the source of goods or services is an essential element in determining whether the thing can be a trademark. A thing that can do this is a trademark, a thing that does not do this cannot be a trademark¹ (there’s been recent talk in academic circles as to whether footnotes are important parts of a piece. I assure you they are). I think that there are problems in how we think about, evaluate, and talk about distinctiveness. First of all, the type of thing a thing is plays a greater role in its potential ability…


People smarter than me have thoroughly examined and produced nuanced solutions for improving the design right regimes and their confusing overlap.

I would like to submit a much blunter solution to fix design rights: get rid of them. No trade dress, no design patents, and no copyright over useful articles at all. Producers should only have their word and logo marks, and the goodwill those marks are imbued with (the same good will any trade dress would have been imbued with) to use to sell products and protect their market share from competitors.

From the producer point of view, all…


Tl;dr

  • This was born out of a day-long argument on twitter about an IKEA lamp.
  • Trademarks are not copyrights. It’s one thing to understand that semantically, but it’s more important for public policy reasons. And, many who expound that the two are different don’t actually recognize or respect the differences.
  • Stop using trademarks for the types of work copyright is meant to protect, even if your client’s particular mark is not eligible for copyright protection due to the useful article doctrine or other limits. This mutilation only hurts trademarks.
  • And while you’re here…if you’re trying to help someone build a…


Trademark law gives a limited monopoly to exclude others from using confusingly-similar trademarks. We generally disfavor monopolies as anti-competitive, bad for innovation, and over all bad for consumers. However, we justify trademark law’s limited monopoly because it advances consumer interests, protecting fair competition in the market, incentivizing investment in producing consistently quality goods, and ensuring consumers can safely identify and buy goods they mean to, safe in the knowledge that those goods will meet the standard of quality the consumer values.

This is great, however, we aren’t buying goods for their qualities anymore, we’re buying them for the trademark on…


In the first article of this series on false advertising I looked at false advertising cases from Oregon and Washington, brought against 5-Hour Energy, to introduce some core concepts of false advertising law.

Today I’ll have a high-level nuts-and-bolts discussion of false advertising law. This will begin at the federal level, looking at section 43(a) of the Lanham Act, and then move to the state level, where states have largely mirrored federal law to create their own false advertising laws. …


(And (maybe) other kinds of law are too!)

Hello.

There are a lot of people who talk and write about the law in ways that make it sound boring and/or scary.

But the law doesn’t have to be boring or scary. A lot of law is really interesting, and made with good intentions. I’d love to see experts in other fields try to peel back the curtain and show how awesome other areas of law are. But, I’m really interested in trademark law (among other equally great fields like copyright, false advertising, and competition), so today we’ll start with trademark law.

A friend of mine, and fantastic trademark…


Hello! This post is meant as the intro to a series I’d like to get running (time permitting), to explore false advertising law, recent cases, and interesting topics. I admit, I’m doing this in large part out of my own interest in learning more about the topics — I think teaching is the best way to *really* learn a subject—but, I think this is a really interesting field of law, and maybe you will too! (and if you’ve got questions or topics you’re interested in, please do let me know!).

To start with, Washington and Oregon courts recently (or, not…


The beginning of a new season of European soccer once again has a bleary-eyed me waking up before dawn on weekends to watch games live on NBC’s online streaming service.

In my excitement to once again trade sleep for soccer, I forgot how terrible the ads are on NBC’s platform. It’s the same 3–4 commercials on repeated over and over again, sometimes even repeated within the same commercial break.

This isn’t limited to NBC, but is common across all the streaming platforms I’ve used, be it ESPN3 or YouTube.

For me, I come to really dislike these commercials — the…


3D Printing and Digital Fabrication’s Role in the Rehabilitation of Local Ecosystems: The Battle to Control the Decentralization of American Production

3D printing will change the way production is done in America — moving away from the centralized corporate model, and back to where production was originally done, the a local or regional level. It is the 3rd Industrial Revolution.

Amazon’s traditional distribution model already provides the corporate example for this. Using regional distribution centers, Amazon has already slashed the time between a customer making an order and the good’s delivery, no matter where “local” is.

But Amazon is already…


This is a quick response to another great Idea Channel video—available here, answering listener questions about 3D printing and IP.

In particular, just after the 4:50 mark, the presenter states the simple (but true!) idea that the best way of protecting your brand from being ripped-off is to “be the best provider.”

It’s such a simple thought, and essentially what I tried to express in previous blog posts, here and here.

After the video, I wanted to concisely offer my advice/thoughts on protecting oneself from being ripped-off, and why our current trademark doctrine is the best means of that protection.

Winslow Hall

IP and Business Law // Fellow @ILPFoundry // Likes: Fullbacks, genericide, fair use. Dislikes: “Real” fans, TM bullies, EULAs.

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