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Article
Why the Customer Isn’t Always Right: Producer-Based Limits on Rights Accretion in Trademark
Yale L.J. (The Pocket Part) (2007)
  • Rebecca Tushnet, Georgetown University
Abstract
In this article the author responds to James Gibson’s article Risk Aversion and Rights Accretion in Intellectual Property Law, which offers valuable insights into the extra-judicial dynamics that have contributed to the seemingly unending expansion of copyright and trademark rights over the past few decades. Her response focuses on the trademark side of that expansion. The theoretical basis for granting trademark rights is that, if consumers perceive that a mark or other symbol indicates that a single source is responsible for a product or service—whether through physical production, licensing, sponsorship, or other approval—then the law should give effect to that consumer perception. Trademark rights thus protect consumers from deception and producers from unfair competition. When it comes to expansive rights claims, trademark’s dual nature is its strength: core trademark doctrines recognize the legitimate interests of producers as limits on the licensing-based rights accretion that a pure consumer protection theory could justify.
Keywords
  • trademark law,
  • consumer perception,
  • fair use,
  • copyright law,
  • licensing markets
Publication Date
2007
Citation Information
Rebecca Tushnet. "Why the Customer Isn’t Always Right: Producer-Based Limits on Rights Accretion in Trademark" Yale L.J. (The Pocket Part) Vol. 116 (2007)
Available at: http://works.bepress.com/rebecca_tushnet/18/