Title: Save the Firehouse: The David and Goliath Battle over Rights to the Use of a Common Name: Firehouse Restaurant V. Scurmont Llc
Abstract: INTRODUCTIONA key tool in the conduct of commerce by business has been the establishment and protection of a firm's distinctive marks known as trademark or servicemarL·. l These distinctive marks of trade date back even in history to caves in Europe of 5,000 B.C.E.2 In the United States; the Founding Fathers in establishment of the U.S. Constitution (and in an era of prolific infringement in Europe) placed a high value on intellectual property providing Congress with enumerated powers for their protection.3 However, the key operative public policy constitutional intent of protection was, as clearly stated, To Promote the Progress of Science and useful Arts...4 In our modern era, the statutory protections of trademark arise from the Lanham Act of 1946.5The essence of the legal concept of trademark has been explained by the U.S. Fourth Circuit as:A trademark puts the purchasing public on notice that all goods bearing the trademark: (1) originated from the same source; and (2) are of equal quality... Thus, a trademark not only protects the goodwill represented by particular marks, but also allows consumers readily to recognize products and their source, preventing consumer confusion between products and between sources of products.6ANTI-COMPETITIVE USE OF TRADEMARK LITIGATION: A QUESTION OF COMMERCIAL ETHICS?The rise of technology since Lanham and aggressive (in many cases, unethical) commercial practices by businesses through all forms of marketing (physical and electronic) witnessed the growth of infringement of marks in what is generally referred to as mark dilution, i.e. unauthorized use of protected marks as part of unfair or deceptive acts in the marketplace. Congress addressed this issue with two major amendments to Lanham, the Trademark Dilution Revision Acts of 1995 and 2006 JSince the 2006 trademark law amendments, the pendulum has swung toward aggressive actions by businesses in protecting their marks, not just from direct infringement, but to the point many believe used as litigious weapons of unfair trade practices; devices to obstruct otherwise legitimate competition. Hence, the original constitutional intent of property, i.e. To Promote the Progress of Science and useful Arts/*8 has given rise to cases of use and potential misuse of protections as an anti-competitive, if not punitive tool in commerce.Intellectual property, be it trademarks, patents or trade dress have traditionally been viewed as complementary devices to advance trade, innovation and choices to consumers. Consequently, in most cases the courts, Justice Department and the Federal Trade Commission recognize exclusivity, even when potential (but not realized) market power may exist from such legal grants.9Nevertheless, courts have recognized that in instances where rights are used in a manner that demonstrates scienter to restrain trade, obstruct competitors or create monopolies, U.S. anti-trust laws10 may come into play to arrest the process. This concept has evolved in business law regarding anti-competitive use of patents. While we acknowledge as does the literature, a divergence between trademarks and patent law, some examples are useful to highlight the concept.In the matter of patents, for example, Congress and the Federal Trade Commission have intervened in the pharmaceutical industry where a patent was used commercially beyond the intent of Congress. 1 1Likewise, the courts have faced a lengthy history of addressing the use of patents and questionable patent infringement lawsuits as a weapon to impede or obstruct competitors in the marketplace. Indeed, the Court was faced with such growing legal tactics during the nation's rapid technological growth of the 1960's and 1970's carving out a legal exception or safe harbor of anti-trust immunity known as Noer-Pennington Immunity. …
Publication Year: 2012
Publication Date: 2012-01-01
Language: en
Type: article
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