Individualism and Collectiveness in Intellectual Property Law
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Individualism and Collectiveness in Intellectual Property Law

Edited by Jan Rosén

Individualism and Collectiveness in Intellectual Property Law embraces fundamental, eternal and yet very contemporary elements in IP law dealt with in all parts of the world. There are certain classic values embedded in the protection of human effort and the creativeness of individuals. This book examines the relationship of those values to the questions inherent both in individual creativeness in a collective setting, and in the tendency to build national, regional or global monopolies based on IP rights. The respect for original ownership, the occasional need for collective management of IP rights, the idiosyncrasies of co-ownership of rights and the ever present tension to be found in encounters between exploitation of IP rights and competition law are extensively exposed in this book.
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Chapter 10: Reconciling Individualism and Collectiveness in Trademark Merchandising in the United States

Irene Calboli


Irene Calboli* 1. INTRODUCTION Trademark merchandising – the use of trademarks on promotional products for profits or simply as advertising – constitutes a ubiquitous phenomenon in today’s society.1 Despite this popularity, however, this booming business technique also constitutes a highly controversial topic and its acceptance under the rule of law still remains unclear in the United States. Not surprisingly, the disagreements surrounding the debate on trademark merchandising reflect the historically opposing views of trademark scholars and practitioners over the scope of trademark protection.2 Arguing that the * Associate Professor of Law, Marquette University Law School. This chapter summarizes the analysis of the practice of trademark merchandising in the United States that I have originally developed in the article, ‘The Case for a “Limited” Protection of Trademark Merchandising’, 2011 Ill. L. Rev. 865 (2011). Accordingly, parts of this chapter are adapted from this article. I would like to thank the participants at the 2010 ATRIP Congress “Individualism and Collectiveness in Intellectual Property Law,” University of Stockholm School of Law, May 23–26, 2010, and in particular Maggie Chon, John Cross, Rochelle Dreyfuss, Graeme Dinwoodie, Ysolde Gendreau, Annette Kur, David Llewellin, Alberto Musso, Alexander Peukert, Lisa Ramsey, Jerome Reichman, Jan Rosen, Lars Smith, Jens Schovsbo, Peter Yu, and Dafne Zografos for helpful conversation, comments, and suggestions. I also thank Marquette University Law School for research support, and Michael Soule and April Ashby for research and editorial assistance. 1 See ‘100 Best Global Brands’, Bus. Wk., Sept. 28, 2009, at 50 (reporting that, in 2009, the...

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