Article
Trade Mark Law As A Normative Project
Singapore Journal of Legal Studies
(2023)
Abstract
This was delivered as the EW Barker Centre for Law & Business Distinguished Visitor in Intellectual Property Lecture at the National University of Singapore Faculty of Law. Trademark law is motivated in part by the goal of protecting certain consumer understandings. But courts typically treat such consumer understanding as a pre-determined, relatively fixed, fact to which the template of trademark law can be applied and from which answers to the relevant legal questions thus inevitably flow. Prof. Dinwoodie challenges this approach as descriptively incomplete and prescriptively harmful. Trademark law is becoming over-concerned with discerning, and validating, the detailed reality of consumer understandings—often without contemplating, or even at the expense of, competing normative concerns. The U.S. Supreme Court’s recent decision to uphold the registration of the mark BOOKING.COM for travel reservation services because the Court refused to discount evidence of actual consumer perception has only served to illustrate this problem. Professor Dinwoodie argues that trademark law should be less fixated on ascertaining, acting upon, and declaring, empirical realities of consumer association and confusion. Instead, courts need more openly—and more fully—to understand trademark as a normative project. In this climate, efforts to enhance the quality of factual input to particular trademark disputes should be a lower priority for trademark law. And, if over-emphasized in ways that downplay the normative character of trademark law, such well-intentioned efforts at improved empiricism may even be counterproductive.
Keywords
- Intellectual Property Law,
- Trademark Law,
- Consumer Protection
Disciplines
Publication Date
2023
Citation Information
Graeme B. Dinwoodie. "Trade Mark Law As A Normative Project" Singapore Journal of Legal Studies (2023) Available at: http://works.bepress.com/graeme_dinwoodie/86/