A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Graeme B. Dinwoodie and Mark D. Janis
Chapter 14: Tolerating confusion about confusion: trademark policies and fair use
13 Protecting the common: delineating a public domain in trade mark law Jennifer Davis I. Introduction From the early twentieth century, the House of David (an unincorporated religious and business association) maintained a baseball team, which toured the United States, “playing several hundred games a year,” and earning a substantial income. According to Judge Woolsey,1 the team played “a sound game of baseball.” However, the most “notable characteristic” of the team was that its players wore beards and had “House of David” printed across their uniforms. In 1929, an individual named Murphy also formed a baseball team whose players wore beards and whose uniforms carried the words, “House of David.” It was Murphy’s strategy to book games for his teams in towns a few days before those dates set for the original House of David, and in so doing according to Judge Woolsey, “diluted the neighborhood’s interest in seeing a bearded baseball team play ball.” Furthermore, the House of David claimed that Murphy’s team played an “inferior game of baseball,” so injuring the House of David’s reputation and, as a result, its gate receipts. The House of David sued for unfair competition.2 It was successful. The use of the plaintiff’s name and appearance together with Murphy’s stratagem of booking in his team ahead of the plaintiff established mens rea. However the court made a particular point about the beards. “From time immemorial,” the judge stated, The wearing of beards has been in the public domain. In respect of matters...
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