Intellectual Property Law

IP Scholars Conference 1

By Susan Crawford

Ninety-nine papers, 150 attendees - information law scholarship is producing lots of numbers.  Each presenter has just 15 minutes.

Mark Lemley has announced an academic database of all IP cases - a huge and impressive undertaking: the Stanford Intellectual Property Litigation Database.  Enormous and enormously helpful.

Mark McKenna is up first, talking about justifications for trademark claims against non-competitors.  Two key ones are “market preemption” and “free riding.”  These are arguments that focus on producer interests, and are basically claims about dilution of the brand (impact on ability to operate in the future).  People have written about brand extensions and alliances, and there’s lots of empirical marketing work on “forward spillover effects” and “backward feedback effects.”  So this isn’t really about “sponsorship,” it’s about a kind of trademark derivative right.   So maybe trademark law is IP law after all.  Next questions should be about free-riding etc - are these appropriate claims?

Lemley: should law be a norm follower or a norm entrepreneur?  Answer:  I’m just looking at the empirical literature here.   Later:  I think we need to think about consumer and producer interests together for these noncompetitor claims.  Where producer interests are low, we’d have to show that there’s real consumer harm.  Question:  what about branding community?  how does that play in here?  McKenna:  I think those interests are real, and trademark law doesn’t deal with them very well.

Full post as published by Susan Crawford Blog on August 07, 2008 (boomark / email).