TM Scholars' roundtable, part 1

Trademark Scholars’ Roundtable, 10th year!Session 1:  The Distinction Between Trademark and Unfair Competition LawIntroduction:   Mark McKenna: Until mid 20th c, could have said that TM and UC were distinct legal claims that vindicated the same right; thus cts said that TM was a species of UC.  All UC aimed at dishonest trade diversion. Use of another’s TM was an egregious example, but other things w/the same dishonest effect fit under the broader UC umbrella.  TM was a more limited category, not conceived of purely in source designating capacity: it was an ontological category of words/symbols that unambiguously indicated source, arbitrary/fanciful. Descriptive terms weren’t TMs; you could bring an UC claim against second users and the nature of the argument was the same, passing off, but not by copying a TM.  A subject matter distinction.UC cases did involve uses that might have had legit explanations—e.g., descriptive…

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