Author Archives: rtushnet

Robert Burrell: use in Commonwealth systems came from strict liability for double identity—once that was extended to advertising, there are a whole lot of nonconfusing/beneficial uses of marks in advertising. TM use was brought in as a safety valve to … Continue reading →

Midpoint discussant: Laura Heymann Is the goal consistency? Is the goal limiting principles that can end a case early? Is use the right tool? Is it a proxy? To what extent should we accept the rest of the landscape as … Continue reading →

Introduction: Mark Lemley: What VIP actually says: Rogers test insulates from liability when use is only non-source identifying. Cardinal sin is to undermine source-indicating functioning: LV modification of mark in suitcase market implicates the core concerns of TM law. That … Continue reading →

Mid-point discussants:  Rebecca Tushnet Continuing the theme of offering a series of observations: Picking up on the relevance of 33(b)/referential use. First, for textualists, it may be true that 33(b) indicates that there is no general use as a mark … Continue reading →

Mike Grynberg: SCt opinions since 2008. Courts don’t care about TM law; every now & then a judge does, but keeping the general rule in mind is useful—can’t expect dcts in particular to be able to sit back and explore all … Continue reading →

University of Minnesota Law School, May 2-3, 2025 Graeme Dinwoodie Why revisit use? (Reading list for 2008 roundtable; session 1, session 2, session 2 part 2, session 3.) Creates methodological questions that are useful/worthy of exploring. 20 years may have … Continue reading →