Your Image Is My Image: When Advertising Dedicates Trademarks to the Public Domain--With an Example from the Trademark Counterfeiting Act of 1984

Malla Pollack, American Justice School of Law

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Abstract

Trademark laws protect the mental association between the source n4 of a product and the product itself. This protection allows consumers to locate merchandise of known quality, and motivates suppliers to produce better merchandise. The extent to which trademarks are property rights owned by the controller of the items they identify is controversial. These dual purposes of trademark protection are often phrased as if the objectives reinforce one another. Sometimes, however, the interests conflict. If the public's interests are not recognized they cannot be protected. This article suggests the existence of an ignored public ownership interest. Trademarks may become communicative symbols standing for something besides the source or sponsorship of the product in whose service they originated. When this happens, the public acquires an ownership interest in the communicative power of the trademark. The symbol's transmutation can be analyzed in traditional trademark terms as function, genericism, or non-trademark use. In non-trademark terms one can frame the argument in terms of co-authorship, sumptuary laws, and public policies against money trumping other signals and against conspicuous consumption. The article also traces the creation and expansion of a trademark right against post sale confusion and against unconfusing "counterfeit" merchandise.