The Ethics of Unbranding

This Essay explores the ethical implications of the phenomenon of unbranding that has recently been discussed in popular and scholarly literature. It compares two extant definitions of unbranding and examines each under alternative ethical theories of trademark law, specifically deontological and consequentialist theories. With respect to each of these theories, the Essay examines the ethical questions raised by the existence of asymmetric information between brand owners and consumers. This includes asymmetries not only with regard to information about products, but also with regard to information about consumer decision-making processes. The latter asymmetry presents conflicts between deontological and consequentialist conclusions regarding the ethics of unbranding, requiring that one system be preferred over the other. The Essay concludes by arguing that consequentialist theories provide the most conventional approach to the problem of unbranding, but that the potential sense of dissatisfaction with consequentialist prescriptions regarding unbranding suggests that there may be an opening for a novel, autonomy-based deontological approach to trademark theory

A Tale of Two Citites: The Residential Landlord\u27s Duty to Mitigate in New York

The past half century has seen sweeping changes to the legal regime applicable to the landlord-tenant relationship, particularly for residential properties. The ancient feudal conception of a lease as a present transfer of an interest in land has given way to a more modem understanding of leases as contracts between a provider of a package of goods and services and their consumer. Among the changes wrought by this conceptual shift has been the imposition of previously unknown obligations on landlords in the event of tenant abandonment. Called either the duty to mitigate or, perhaps more accurately, the avoidable consequences rule, the rule requires a landlord seeking recovery of damages from a defaulting tenant who has abandoned possession to establish that he has made reasonable efforts to minimize the damages flowing from the tenant\u27s abandonment. This is a departure from the traditional rule that a landlord could, if he chose, allow property abandoned by a tenant during the term of a lease to sit vacant and idle, and still hold the tenant liable for the full rent due under the lease for the entire term thereof. A recent survey reports that the District of Columbia and all but six states have adopted this rule by statute or judicial decision in the four decades since it first entered the American legal landscape. New York has been a studied exception to this trend. For decades, the lower courts in the state have variously imposed and rejected the landlord\u27s duty to mitigate, at least in the context of residential leases. This unsettled situation came to an apparent end in the summer of 2008, when the Appellate Division, Second Department, of the New York Supreme Court handed down its decision in the case of Rios v. Carrillo. That case sided with those lower courts that had held that residential landlords have no duty to mitigate, and in so doing, effectively imposed the traditional no-mitigation rule statewide for the foreseeable future. This Article argues that the Rios decision is worthy of criticism, but not because imposing a duty to mitigate on landlords is necessarily the best rule for every dispute arising out of a residential tenant\u27s abandonment. Rather, Rios is bad law because it is the product of an unfortunate confluence of a poorly framed legal issue, a poorly organized judicial hierarchy, and an economically diverse jurisdiction. Rather than argue the merits of the traditional or modem positions on the legal question of landlord mitigation in the abstract, this Article argues that courts in New York have traditionally responded to residential tenant abandonment by weighing the equities and the good faith of the parties in each case, and that they should continue to do so. Rios forecloses this type of factually sensitive inquiry on the part of trial courts, creating incentives for undesirable strategic behavior by landlords. This Article proceeds as follows: Part I analyzes the cases in this area of landlord-tenant law and identifies trends in the doctrine leading up to the decision in Rios—chief among them a sensitivity of courts to the particular equities of the parties before them—and situates Rios as a natural result of these trends. Part II discusses the features of the New York Unified Court System that allow Rios, while consistent with pre-existing trends in the case law, to upend those trends and eliminate the equitable sensitivity that has characterized residential tenant abandonment cases in New York. Part III demonstrates the likely effects of this shift in the law by reference to demographic data on housing characteristics in the downstate region. Part IV concludes with a critique of Rios, not simply as a wrongly decided case, but as an example of how things can go wrong in a common-law system of adjudication

Dilution at the Patent and Trademark Office

This Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to different registrants in different product classes is a long-standing feature of the registration system that does not appear to have changed with the advent of anti-dilution rights. In the third part, I examine third-party applications to register famous marks, and find some suggestion that anti-dilution rights coincide with a modest decrease in the success of such applications—more likely due to an increased rate of abandonment by applicants than to increased opposition by prior registrants. But this change, even if it is not illusory, would correspond to at most an additional 5 to 30 rejected applications per year, against an annual volume of as many as 200,000 applications for word marks in general. While additional research may help buttress the case that anti-dilution rights have had a modest effect on registration for a very narrow class of marks, I conclude that their primary effect appears to be imposing increased costs on those who have business with the trademark system, with little if any apparent benefit to justify those costs

Marks, Morals, and Markets

The prevailing justification for trademark law depends on economic arguments that cannot account for much of the law\u27s recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean natural rights theory that scholars have found even more unsatisfying. This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractualist tradition in moral philosophy, I develop and apply a new theoretical framework to evaluate trademark doctrine. I argue that this contractualist theory holds great promise not only as a descriptive and prescriptive theory of trademark law, but as a framework for normative analysis in consumer protection law generally

Essay: I Choose, You Decide: Structural Tools for Supreme Court Legitimation

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus on reforms to the selection, appointment, or tenure of Justices. I propose a different (and perhaps complementary) reform, which would not require constitutional amendment. I propose that the selection of a case for the Court’s discretionary appellate docket should be performed by a different group of judicial officers than those who hear and decide that case. The proposal leverages the insight of the “I Cut, You Choose” procedure for ensuring fair division—only here, it manifests as “I Choose, You Decide.” This proposal, rather than attempting to correct any supposed institutional deficiency that exacerbates the effects of partisanship, instead seeks to create a structure of checks and balances by pitting partisanship against partisanship

Biasing Brands

The dominant search-costs model of trademark law posits that consumers choose products to satisfy their preferences by analytically mapping those preferences to product information that trademarks efficiently provide. This Article tests these descriptive claims against empirical and theoretical research in marketing and consumer psychology, particularly the concept of brand equity : the value to a firm or its customers of a brand and of the firm\u27s efforts to build and maintain that brand. Internally complex brand equity models, juxtaposed with empirical findings in related psychology and marketing research, challenge the descriptive accuracy of the search-costs model. In particular, branding efforts can influence consumer decision-making not only by informing and persuading consumers, but also by altering the way consumers evaluate product information and consumption experiences. In a word, branding can bias consumers. The phenomenon of brand bias suggests that the search-costs model is incomplete and that trademark protection can only reliably promote economic efficiency in a legal environment where complementary regulations, such as those prevalent in food and drug law, mitigate the opportunities for producers to extract rents by manipulating consumer psychology. The Article concludes by situating trademark law in this broader web of consumer protection law

The Ethics of Unbranding

This Essay explores the ethical implications of the phenomenon of unbranding that has recently been discussed in popular and scholarly literature. It compares two extant definitions of unbranding and examines each under alternative ethical theories of trademark law, specifically deontological and consequentialist theories. With respect to each of these theories, the Essay examines the ethical questions raised by the existence of asymmetric information between brand owners and consumers. This includes asymmetries not only with regard to information about products, but also with regard to information about consumer decision-making processes. The latter asymmetry presents conflicts between deontological and consequentialist conclusions regarding the ethics of unbranding, requiring that one system be preferred over the other. The Essay concludes by arguing that consequentialist theories provide the most conventional approach to the problem of unbranding, but that the potential sense of dissatisfaction with consequentialist prescriptions regarding unbranding suggests that there may be an opening for a novel, autonomy-based deontological approach to trademark theory

Misappropriation-Based Trademark Liability in Comparative Perspective

(Excerpt) The anti-misappropriation principle, at its core, is that it is wrongful and therefore actionable for a competitor to gain a commercial advantage from the efforts of another, even if that advantage does not directly harm the person whose efforts have been misappropriated. This principle appears to be a deep theoretical commitment of modern intellectual property law. And nowhere in intellectual property law is the anti-misappropriation impulse more directly implicated than in the context of conspicuous consumption. As I have written about elsewhere, modern consumers engage in conspicuous consumption of branded goods to signal social affiliation and identity, and to claim their place in the socio­ economic hierarchy of late capitalism. But the expressive effect of such consumption may be compromised by indiscriminate copying of the goods that serve as tokens of that expression. Protecting in-groups\u27 tokens of social affiliation and rank against unauthorized appropriation by outsiders is therefore a necessary condition of successful conspicuous consumption. Regulation of access to such socially expressive goods - particularly fashion products - was once the function of elaborate sumptuary codes based on de jure social status. Today however, conspicuously consumed signals of social identity and status are rationed through markets, aided by an unlikely legal regime: trademark law