Edited by Jan Rosén
Chapter 10: Reconciling Individualism and Collectiveness in Trademark Merchandising in the United States
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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