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Pollack on Reverse Passing Off

By Lawrence Solum

Malla Pollack has posted Reclassifying Reverse Passing Off as Failure to Contract or as False Advertising (Boston University Journal of Science and Technology Law, Forthcoming) on SSRN. Here is the abstract:

The tort of reverse passing off should be abolished. This conclusion stems from a combination of economic analysis, recognition of the disparate foundations of trade identity law versus creativity law (such as copyright and patent), realistic appraisal of product distribution, and an updated survey of existing case law. Trademark holders which desire a legally enforceable right for their marks to remain affixed to their goods downstream should be required to contract ex ante. Any likelihood of consumer deception caused by using another?s goods in an advertisement for one?s own goods should be addressed through false advertising claims. Reverse passing off should be eliminated as a distinct cause of action.

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