48:4 Trademark’s Daemons

Trademark: Today and Tomorrow

Abstract

Trademark law’s goal seems, at first, wonderfully straightforward. It prevents the deception of consumers regarding the source of products and services. This, in turn, leads to an important associated benefit: investments in the quality of products and services designed to bolster trademark goodwill.

Yet when we explore contemporary trademark jurisprudence, a cast of entirely foreign commitments bedevilling this core logic confronts us. This Essay identifies four “daemons” of trademark jurisprudence, four alternative inner animi that motivate the actions of courts considering trademark cases. They are: the daemon of creativity, the daemon of identity, the daemon of
efficiency, and the daemon of fair use.

All of these daemons are well-intentioned creatures, yet none of them serve the foundational function of trademark law. Instead trademark’s daemons threaten the integrity of its mission. Accordingly, I propose that they be rooted out and exiled from the domain of trademark.