Document Type
Article
Publication Date
2013
Rights
Abstract
This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, there are also at work judicial assessments of highly charged questions of right and wrong. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decisionmaking, often operating without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly those deemed to insufficiently invest of themselves in the marketplace, results in an overbroad consideration of the defendant’s intent. Judicial conceptions of sexual propriety steer trademark dilution law. Loyalty to certain views and markers of nationhood explain judge-made rules that privilege particular meanings for national symbols over consumer welfare. These three examples show that moral intuition can produce very bad trademark doctrine. The Article concludes that moral concerns will inevitably influence judges but they will do less harm if, instead of being hidden behind economic rhetoric, they are brought to the surface and interrogated just like any other technique of legal argument.
Publication Title
William and Mary Law Review
First Page
85
Last Page
161
Recommended Citation
Mark Bartholomew,
Trademark Morality,
55
Wm. & Mary L. Rev.
85
(2013).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/39