Race and Gender Discrimination: A Historical Case for Equal Treatment Under the Fourteenth Amendment

It was we, the people, not we, the white male citizens, nor yet we, the male citizens, but we, the whole people, who formed this Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people--women as well as men. --Susan B. Anthony 1 Under the common law of both England and the United States, a married woman enjoyed a legal status only slightly better than that of a slave. Until the mid-nineteenth century, in no state could a married American woman own property, make a will, inherit, sue or be sued, enter into a contract, or exercise any other of her most basic civil rights. Even single and widowed women, many of whom owned large amounts of property, were deprived of political rights: they could not vote, hold office, or sit on a jury. The gradual dissolution of women\u27s inferior legal status began with the passage of married women\u27s property laws, beginning before the Civil War and continuing throughout the twentieth century. In an even more brutal fashion, the institution of slavery stripped Black Americans of all their human, civil, political, and social rights. 2 In Dred Scott v. Sanford the Supreme Court determined that, even if Blacks were free, they were not citizens of the United States. 3 This Supreme Court ruling was superseded by the passage of the Thirteenth and the Fourteenth ..

Toward a More Coherent Doctrine of Trademark Genericism and Functionality: Focusing on Fair Competition

The doctrines of trademark genericism and functionality serve similar functions under the Lanham Act and the common law of unfair competition. Genericism, in the context of word marks, and functionality, for trade dress, bar trademark registration under the Lanham Act and, both under the Act and at common law, render a trademark unprotectable and invalid. In the word mark context, genericism stands for the proposition that certain parts of vocabulary cannot be cordoned off as trademarks; all competitors must be able to use words that consumers understand to identify the goods or services that they are selling. Functionality likewise demands that certain aspects of product design cannot be legally protected as trade dress, as to do so would potentially limit competitors’ ability to make products that work as well at the same price. The core concern, for both doctrines, is or should be the preservation of free and fair market competition. Part I of this Article explains the theoretical parallels between the doctrines of genericism and functionality, and examines the history and purpose of these doctrines. A finding that a word is or has become generic, or that a form of trade dress is functional, negates a mark’s registration and protection under the Lanham Act, as well as under state and common law. Even incontestable marks can be declared invalid, regardless of the passage of time, under either doctrine. The types of trademarks typically at issue when making genericism and functionality determinations—word marks that are, at best, descriptive, or product design functioning as trade dress—are correctly described as weak. The genericism and functionality doctrines therefore play a critical role in marking the boundaries of trademark law. To properly draw those lines, decision makers need to correctly define and understand the theory underlying both doctrines. In Part II, this Article argues that both genericism and functionality, in their practical interpretation and purpose, should more clearly reflect the core principle of protecting fair competition. In particular, the concept of viable, competitive alternatives—either in the form of words or alternative designs—should play an enhanced role in determining whether an erstwhile trademark is generic or functional. The various tests for genericism and functionality currently employed by the courts often attempt to draw formalistic distinctions among categories of words or product features that may confound business owners (and their lawyers) and divert the focus of the courts’ inquiry in such cases away from the core value at the heart of both doctrines: preserving fair competition

The Myth and Reality of Dilution

Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying capacity of the targeted trademark. This Article challenges that theory. The evidence that this phenomenon occurs is weak and has been subject to substantial empirical challenge. The true foundation for dilution claims lies not in alleged economic harms, but rather the misplaced fiction of corporate personality. We do not require trademark holders to prove actual economic injury in the context of a dilution claim because, at least in the vast majority of cases, there is none. Instead, we have granted the holders of famous trademarks the equivalent of a “moral” right to these marks, analogous to the rights granted to a creator of an expressive work in the copyright context. The parameters of that right have recently expanded in numerous ways that have increasingly burdened both competition and free speech. Recasting dilution law in a moral rights framework allows us to more accurately assess its costs and benefits, with normative implications for its continued existence and scope. In particular, the federal dilution statute should be repealed, amended, or, at the very least, narrowly construed

Fugitive Slaves and Undocumented Immigrants: Testing the Boundaries of Our Federalism

Federalism—the dual system of sovereignty that invests both the nation as a whole and each individual state with the authority to govern the people of the United States of America—is a foundational pillar of American democracy. Throughout the nation’s history, political crises have tested the resilience of this dual system of government established by the United States Constitution. The fundamental contradiction of slavery in a nation founded on the principle that “all men are created equal” triggered the nation’s most prominent existential crisis, resulting in the Civil War. In the years leading up to that war, the federal government’s protection of the institution of slavery, via the Fugitive Slave Acts, clashed with the personal liberty laws of the free states. These states had eliminated slavery within their own borders, and hence did not embrace federal laws compelling them to allow (or assist in) the pursuit and capture of putative slaves living on free soil. The intensity of the resistance within these states increased as the federal government ratcheted up efforts to enforce the Fugitive Slave Acts, with little consideration given to the conflicting values of American citizens living in free states. The most crucial federalism crisis of today stems from conflicting state and federal perspectives as to immigration. The Trump administration’s “zero tolerance” approach to “illegal” immigration has been tone deaf to the mores of people who live in diverse states such as California, especially as to immigrants who are seeking asylum. The President has personally repudiated and even mocked the nation’s long-standing commitment to the legal principle of non-refoulement, which prohibits the forcible return of refugees to countries where they face serious threats to their lives or freedom. Moreover, the Trump administration’s heavy reliance on executive action to achieve its goals, rather than the legislative process, has generated policies that lack widespread support among the national citizenry, not just that of an individual state . The United States may learn some valuable lessons by reflecting on its past, specifically the history of the federal laws that sought to force the free states to recognize slavery within their borders. Heavy-handed attempts to compel compliance with federal law tend to engender resistance rather than cooperation, especially when, in the eyes of many, the federal law lacks both moral and democratic legitimacy. At a minimum, the federal government should not attempt to commandeer California and similar states to implement federal immigration policies that are misaligned with the values of the majority of their citizens. The safety valve of federalism allows these states to decline to do so

Confronting the Genericism Conundrum

Recent lawsuits and articles have drawn attention to a growing issue in intellectual property law, the aggressive and arguably abusive tactics of intellectual property (“IP”) rights holders. In the trademark context, some maintain and there are arguments to support the idea that trademark holders bring these actions as a means of manipulating the public through direct control of the public’s ability to use language. Nonetheless, assuming trademark holders and their counsel are acting at some level of good faith and are rational, something else in the law itself may be driving this otherwise questionable behavior. This paper argues that the doctrine of genericism—under which a court may determine a previously valuable mark is or has become generic, thus losing all trademark status and value—as it is currently applied forces the trademark holder to police her rights in this extreme manner for fear of losing her mark. Specifically, this paper investigates the theoretical and historical evolution of the doctrine and posits that current genericism doctrine has strayed far from its roots, which are in consumer understanding in the marketplace and enhancing competition, and now concerns itself with an inappropriate property type of analysis that places great weight on non-commercial and/or non-competitive trademark use contexts (e.g., dictionary entries, newspapers, noncompetitive third-party uses). This focus leads to inefficient results, i.e., trademark holders engaging in extensive advertising, letter campaigns, and litigation to try to protect the mark and prevent it from being deemed generic. As such this paper argues that the doctrine should be re-anchored to focus on the mark’s ability to act as a source identifier for the consumer in commercial contexts. Re-focusing genericism on consumer contexts rather than non-consumer, expressive contexts will allow the analysis to embrace a more sophisticated, broad understanding of trademarks. This approach recognizes a term’s ability to perform more than one function in language depending on the user of the term and the context of the term’s use. In addition, this revised understanding of genericism would undermine trademark holders’ ability to claim the need to engage in what would otherwise be frivolous and/or abusive enforcement strategies, because they could no longer hang their collective hat on the excuse that they were required to do so to avoid falling victim to genericism. In short, this retooling of the doctrine would allow trademark owners to enjoy the full benefits of the source identifying functions of their marks while at the same time creating a space in which the public may enjoy full use of the terms without fear of reprisal by mark owners

Fugitive Slaves and Undocumented Immigrants: Testing the Boundaries of Our Federalism

Federalism—the dual system of sovereignty that invests both the nation as a whole and each individual state with the authority to govern the people of the United States of America—is a foundational pillar of American democracy. Throughout the nation’s history, political crises have tested the resilience of this dual system of government established by the United States Constitution. The fundamental contradiction of slavery in a nation founded on the principle that “all men are created equal” triggered the nation’s most prominent existential crisis, resulting in the Civil War. In the years leading up to that war, the federal government’s protection of the institution of slavery, via the Fugitive Slave Acts, clashed with the personal liberty laws of the free states. These states had eliminated slavery within their own borders, and hence did not embrace federal laws compelling them to allow (or assist in) the pursuit and capture of putative slaves living on free soil. The intensity of the resistance within these states increased as the federal government ratcheted up efforts to enforce the Fugitive Slave Acts, with little consideration given to the conflicting values of American citizens living in free states. The most crucial federalism crisis of today stems from conflicting state and federal perspectives as to immigration. The Trump administration’s “zero tolerance” approach to “illegal” immigration has been tone deaf to the mores of people who live in diverse states such as California, especially as to immigrants who are seeking asylum. The President has personally repudiated and even mocked the nation’s long-standing commitment to the legal principle of non-refoulement, which prohibits the forcible return of refugees to countries where they face serious threats to their lives or freedom. Moreover, the Trump administration’s heavy reliance on executive action to achieve its goals, rather than the legislative process, has generated policies that lack widespread support among the national citizenry, not just that of an individual state . The United States may learn some valuable lessons by reflecting on its past, specifically the history of the federal laws that sought to force the free states to recognize slavery within their borders. Heavy-handed attempts to compel compliance with federal law tend to engender resistance rather than cooperation, especially when, in the eyes of many, the federal law lacks both moral and democratic legitimacy. At a minimum, the federal government should not attempt to commandeer California and similar states to implement federal immigration policies that are misaligned with the values of the majority of their citizens. The safety valve of federalism allows these states to decline to do so

The Myth and Reality of Dilution

Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying capacity of the targeted trademark. This Article challenges that theory. The evidence that this phenomenon occurs is weak and has been subject to substantial empirical challenge. The true foundation for dilution claims lies not in alleged economic harms, but rather the misplaced fiction of corporate personality. We do not require trademark holders to prove actual economic injury in the context of a dilution claim because, at least in the vast majority of cases, there is none. Instead, we have granted the holders of famous trademarks the equivalent of a “moral” right to these marks, analogous to the rights granted to a creator of an expressive work in the copyright context. The parameters of that right have recently expanded in numerous ways that have increasingly burdened both competition and free speech. Recasting dilution law in a moral rights framework allows us to more accurately assess its costs and benefits, with normative implications for its continued existence and scope. In particular, the federal dilution statute should be repealed, amended, or, at the very least, narrowly construed