Companies in a number of industries are involved in the creation of what we refer to as “design-sensitive” technologies. By this, we mean technological products, such as computer devices, high-end athletic shoes, smartphones, and cars, in which design and functional utility both play a...

Are trademark owners harmed when observers on the street mistake knockoffs for the real thing? The concept of "post-sale confusion"—which has resulted in verdicts over over $300 million—is predicated on the notion that trademarks can be harmed even if no consumer is ever confused about what...

Fashion today is faster than ever and knockoffs more common, but fashion copying is nothing new. For over a century the fashion industry has bemoaned the ubiquity and ease of copying. Writing in 1916, one industry observer explained the problem: Despite “the expense of thousands of dollars to...

In this short commentary, we discuss our recent empirical scholarship on the vexing question of how to prove claims that a trademark has been diluted by “blurring.” We first discuss the current confusion in the federal courts over what qualifies as proof of dilution. We then report the...

What is antitrust? What does it do? And how has it changed over time? This chapter offers an accessible, up-to-date, and wide-ranging introduction to US antitrust law and some of the questions that it implicates. It is intended for new readers: no background in antitrust, economics, or law is...

Strategies based in behavioral economics have quickly gained major importance in shaping public policy, most notably in the form of "nudges" that promise to promote, but not to force, socially-productive choices at low cost. Nudging interventions typically presume some asymmetry of...

The orthodox argument for IP proceeds in three steps. First, creative works are often difficult and expensive to create - think of the poet in pursuit of the right verse, or pizza-fueled late nights spent programming a new video game. Second, once the author or inventor produces the first...

Federal courts are currently split, even within particular districts, on the basic question of what a plaintiff must show to establish that a defendant's conduct constitutes trademark dilution by blurring. Federal trademark law defines “dilution by blurring” as “association arising from...

In this short commentary, we reply to Hal Poret’s critique of a series of experiments on trademark dilution that we summarized in this journal back in 2019. In our view, Poret’s critique omits important findings from both our University of Chicago Law Review article ("Testing for Trademark...