A Handbook of Contemporary Research
Edited by Graeme B. Dinwoodie and Mark D. Janis
Chapter 19: Signs, surfaces, shapes and structures - the protection of product design under trade mark law
18 Of mutant copyrights, mangled trademarks, and Barbie’s beneficence: the influence of copyright on trademark law Jane C. Ginsburg* In Dastar Corp. v Twentieth Century Fox Film Corp.,1 Justice Scalia colorfully warned against resort to trademarks law to achieve protections unattainable by copyright, lest these claims generate “a species of mutant copyright law that limits the public’s ‘federal right to “copy and to use,”’ expired copyrights.”2 The facts of that controversy, in which the claimant appeared to be invoking time-unlimited trademark protection to end-run the exhausted (unrenewed) copyright term in a motion picture, justified the apprehension that unbridled trademark rights might stomp, Godzilla-like, over more docile copyright prerogatives. Unfortunately, in the Court’s eagerness to forestall Darwinian disaster in intellectual property regimes, it may have engaged in some unnatural selection of its own, mangling trademark policies in the process of conserving copyright. This chapter will first consider how the (mis)application of copyright precepts has distorted trademarks law, then will take up happier examples of beneficent copyright influence. The first inquiry charts the near-demise of moral rights at the hands of copyright-(mis)informed trademark analysis. The second lauds the growing acceptance of copyrightinspired free speech limitations on trademark protection, exemplified by the various “Barbie” cases,3 and culminating in the “fair use” exemptions of the Trademark Dilution Revision Act of 2006. * Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia University School of Law. Thanks to Prof. Greg Lastowka, and for research assistance to Zahr...
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