"Are You There, Trademark Law? It's Me, Misogyny."

When I became aware of the emergent body of legal scholarship on menstruation related topics on which this Symposium builds, I thought that the authors of these articles were very brave.1 I’m an imperfect but life-long feminist and accepted the emotional challenge that writing this Essay posed for me out of gratitude to those authors. Because my principal scholarly focus is intellectual property law, I approached the topic through the lens of trademark law. Part One of this article positions this Essay firmly within the contours of the author’s life and personal experiences with menstruation. Part Two maps common trademark and branding practices related to tampons and sanitary napkins. Part Three explains that the Lanham Act does not offer legal mechanisms by which to challenge the federal registration of sexist trademarks. As with racist trademarks, amplified criticism and persistent public pressure are the main mechanisms available to foment positive change in the marketplace for feminine hygiene products.

Comparison of Trademark Counterfeiting Laws that Harm Human Health in Indonesia and the United States

This study will describe examples of cases of brand counterfeiting that endanger human health and will analyze how the legal protection for trademark rights holders for brand counterfeiting endangers human health, the comparison of Indonesian law with the United States of America. This research is a normative legal research with a statutory approach and a case approach. The data used is secondary consisting of primary and secondary legal materials. Based on the research results, it is known that examples of brand counterfeiting that endanger human health are the counterfeiting of the “One Care” brand and the “Bango” soy sauce brand counterfeiting. Legal protection for trademark rights holders for brand counterfeiting that endangers human health, the comparison of Indonesian law with the United States is that they both follow the development of international legal principles. The difference in Indonesia is regulated in the Trademark and Geographical Indication Law and the Perlinkos Law, while in the United States it is regulated in the Lanham Act of 1946 or the Federal Trademark Lanham Act.

Is the Word "Consumer" Biasing Trademark Law?

Our trademark law uses the term “consumer” constantly, reflexively, and unconsciously to label the subject of its purpose—the purchasing public. According to the U.S. Supreme Court, trademark law has “a specialized mission: to help consumers identify goods and services they wish to purchase, as well as those they want to avoid.” As one leading commentator puts it, “trademarks are a property of consumers’ minds,” and “the consumer, we are led to believe, is the measure of all things in trademark law.” Much criticism has been rightly levied against trademark law’s treatment of the consumer as passive, ignorant, and gullible. For instance, consumers are seen as requiring protection from any and all marketplace confusion and have no standing to sue under the Lanham Act. However, that a contributing factor to such treatment could be the linguistic bias stemming from the law’s label of the buying public as mere consumers—rather than, for instance, “citizens,” “persons,” “individuals,” or “humans”—has not, until now, been directly addressed. This Article urges those involved in trademark and advertising law—e.g., judges, lawyers, lawmakers, and scholars—to rethink our ubiquitous use of the derogatory consumer label. To this end, the Article first explores “consumer” as a dehumanizing, anti-ecological, and nonsensical metaphor for “one that utilizes economic goods.” It then examines social psychology experiments finding that use of “consumer” has potentially deleterious effects for society given the negative stereotypes that it engenders as a social categorization. The Article claims, by extension, that the implicit linguistic bias inherent in consumer rhetoric might contribute to trademark law defining the public in a manner that is patronizing, biased, insulting, and indulgent of likelihood-of- confusion claims. The Article suggests that we either work to phase out the “consumer” label and replace it with more appropriate terminology (e.g., “citizen”), or at least pause to acknowledge the word’s potentially biasing effects.

Definition as a Genre in Three Legal Systems: A Comparative Analysis

This paper aims at comparing the definition of ‘trademark’ in three different legal systems – EU law, international law and US common law – in order to identify the discoursal, generic and textual characteristics of definition as a genre. The selected corpus of analysis is made up of three definitions from EU Regulation 2017/1001, WTO Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS) and US Lanham Act (sec.45) and of several US cases from 1926 to 2019. The theoretical framework within which the analysis is carried out is the seminal work on definition as carried out by Richard Robinson (1954) and Harris and Hutton (2007). The approach is mainly linguistic, though a historical excursus on the concept of definition is provided as a necessary introductory premise. The findings demonstrate that EU legal texts are characterised by a hybrid style (Robertson 2010) which results from the combination of common law and civil law textual features. The analysis of the definitional sections here displayed supports this point and confirms that EU term formation and definition are text-driven (Šarčević 2016). EU legal texts in their English version originate from the dynamic combination of two aspects: one connected to EU legal English – which is not common law English – and one connected to matters of terminology, syntax and general structure which has a French origin.

US Supreme Court holds willfulness unnecessary for award of profits in trade mark infringement case

Romag Fasteners, Inc v Fossil, Inc, No 18–1233, --- S.Ct. ----, 2020 WL 1942012 (23 April 2020) On 23 April 2020, the US Supreme Court held that a trade mark infringement plaintiff is not required to prove that a defendant acted ‘willfully’ in order to recover profits as an equitable remedy under section 35(a) of the Federal Trademark Act of 1946 (the ‘Lanham Act’), 15 USC s 1117(a).

Non-Traditional Trademarks

Over the last sixty years, courts and the USPTO have engaged in an ill-advised expansion of trademark subject matter. Where once only words or emblems attached to a product could serve as a trademark, today a product’s design or packaging itself may receive such protection. This expansion was and is a mistake. While there may be rare cases where a product’s design or packaging conveys brand-specific information and could receive protection without impairing competitor’s ability to offer substitutes, such cases are the exception and not the rule. By recognizing trade dress protection within the trademark law framework, courts and the USPTO have made the exception into the rule. Trade dress protection today has become an anticompetitive weapon that forecloses competition with no redeeming benefits. Courts and the USPTO should therefore correct their mistake and deny trade dress substantive protection under the Lanham Act, as Congress intended.

Postwar Hopes

This chapter examines the protests that erupted in California when the federal government threatened to close the Lanham Act centers and the broad-based coalition that pushed for a permanent program in California. That year, 1946, marked a moment of possibility for advocates of state-supported child care for working mothers. Many in the progressive coalition insisted that wartime child care should be the basis for a universal nursery school program on the state level. While these citizens saw child care as social service the government should provide, political leaders had a different view. In the eyes of most politicians, the centers represented a temporary service only for the state's neediest residents.