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McKenna on Equitable Discretion in Trademark Law

By Lawrence Solum

Mark P. McKenna (Notre Dame Law School) has posted Back to the Future: Rediscovering Equitable Discretion in Trademark Cases (Lewis & Clark Law Review, Vol. 14, 2010) on SSRN. Here is the abstract:

Courts in recent years have increasingly made blunt use of their equitable powers in trademark cases. Rather than limiting the scope of injunctive relief so as to protect the interests of a mark owner while respecting the legitimate interests of third parties and of consumers, courts in most cases have viewed injunctive relief in binary terms. This is unfortunate, because greater willingness to tailor injunctive relief could go a long way to mitigating some of the most pernicious effects of trademark law?s modern expansion. This Essay urges courts to reverse this trend towards crude injunctive relief, and to re-embrace their equitable discretion as a means of achieving greater balance in the trademark system.

Full post as published by Legal Theory Blog on March 30, 2010 (boomark / email).