Parody As Brand

Dogan, Stacey L.; Lemley, Mark A.

doi:10.2139/ssrn.2170498

Cited by 5 publications

(1 citation statement)

References 7 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…And if no one else is putting generic colas next to Coke, it is an easy mental step to conclude that a grocer that does so is free riding on Coke's interest in being insulated from nearby competitors, particularly if the grocer is making money directly or indirectly from the placement or sales of generic colas. 255 It seems reasonable to draw a line at some point and say that the law will simply refuse to countenance some theories of consumer confusion. Perhaps that line should be drawn at nontrademark uses.…”

Section: Mandating Similarity In Trademark Lawmentioning

confidence: 99%

The Audience in Intellectual Property Infringement

Fromer

Lemley

2016

Preprint

View full text Add to dashboard Cite

Every IP right has its own definition of infringement. In this paper, wesuggest that this diversity of legal rules is largely traceable todifferences in the audience in IP cases. Patent, trademark, copyright, anddesign patent each focus on a different person as the fulcrum forevaluating IP infringement. The fact that patent law focuses on an expertaudience while trademark looks to a consumer audience explains many of thedifferences in how patent and trademark cases are decided. Expert audiencesare likely to evaluate infringement based on the technical similaritybetween the plaintiff’s and defendant’s works. Consumers, by contrast, arelikely to pay more attention to market substitution and less attention tohow things work under the hood. Understanding the different audiences in IPinfringement is critical to understanding how the IP regimes defineinfringement.The focus on audience has normative as well as descriptive implications.Neither patent law, with its focus on experts and technical similarity, nortrademark law, with its market-based consumer focus, has it entirelycorrect. Rather, we suggest that as a general matter infringement of an IPright should require both technical similarity and market substitution.Assessing infringement through the expert’s eyes ensures that the lawprevents closely related works in the field while allowing latercontributions to the field that are sufficiently different. The consumervantage point ensures that we protect IP owners only when they have beenharmed in the marketplace.IP owners who want to show infringement should have to show both that thedefendant’s work is technically similar to their own from the expert’svantage point and that the defendant’s use causes the plaintiff marketharm. Copyright law, which does look both to experts and to consumers atvarious points in infringement analysis, is on the right track.

show abstract

Section: Mandating Similarity In Trademark Lawmentioning

confidence: 99%