The Judicial Role in Trademark Law

Abstract

This article considers the judicial role in developing trademark law. The issue is important because proposals for trademark reform often rest on expansive, but unexamined, conceptions of judicial authority. In thinking about trademark reform, we should broaden our perspective to include considerations of what we want from the law in general. Our answer to the question of what judges applying the Lanham Act should do may vary depending on whether we respond as subjects of trademark law (i.e., as consumers or sellers); as litigants to a trademark action; or as third parties whose focus is not on trademark law, but the general operation of the legal system. Thinking about contested trademark policies in this manner provides an alternative basis for explaining, critiquing, and reforming modern doctrine.