In the United States, lives are lost on a daily basis due to a serious shortfall in the availability of kidneys for transplant. The debate over possible solutions has primarily taken place at two theoretical poles. Market advocates argue that it is morally irresponsible to let potential...

Scholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance...

This essay, written for a symposium on Larry Cunningham’s new book, Contracts in the Real World, proposes there is much to learn about contract law from how contract negotiation and modification are portrayed in the “reel world” of movies and television. While many examples of contract...

Classifying a trademark as descriptive rather than suggestive fundamentally alters the scope of trademark protection. A descriptive mark, derived from a feature of the product or service sold, only qualifies for protection after the mark has acquired source significance, i.e., consumers see it...

As the costs of creating and sharing information have plummeted, some scholars question the continued utility of copyright protection, which imposes artificial scarcity so that authors can recoup creation and dissemination costs. Scholars have ignored, however, that when information is abundant,...

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s song “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil...

Trademark law protects famous marks from dilution by tarnishment, defined by statute as use likely to “harm the reputation of the famous mark.” Tarnishing uses are typically those that connect a mark with disreputable goods or topics, like sex or drugs. Mark owners ostensibly worry that...

There is an ongoing debate over whether or not a trademark is “property,” and what the appropriate boundaries of such a property right might be. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property...

Prior to decisions by the Supreme Court of the United States in eBay, Inc. v. MercExchange, L.L.C. and Winter v. NRDC, appellate courts routinely affirmed the exercise of discretion by district courts to grant injunctive relief in trademark cases. Indeed, if trademark owners made out a prima...