Panel 2: Distinctiveness in the Age of the Internet

Authors

• Barton Beebe, New York University School of Law
• David H. Bernstein, Debevoise & Plimpton LLP
• Laura A. Heymann, William & Mary Law School
• Alexandra J. Roberts, University of New Hampshire Franklin Pierce School of Law
• Felix Wu, Benjamin N. Cardozo School of LawFollow

Abstract

The article examines the role of consumer perception in determining whether a term is generic or distinctive for trademark purposes, emphasizing that words are context-dependent and not inherently generic or distinctive. It highlights the importance of assessing consumer understanding and use of terms in specific contexts, as well as the need for courts to consider multiple forms of evidence, including surveys, mark talk, and broader marketplace data, to make informed decisions. The analysis also touches on policy considerations, such as keeping certain features free for competition and consumer use, which may influence legal outcomes.

Disciplines

Entertainment, Arts, and Sports Law | Intellectual Property Law | Law

Recommended Citation

Barton Beebe, David H. Bernstein, Laura A. Heymann, Alexandra J. Roberts & Felix Wu, Panel 2: Distinctiveness in the Age of the Internet, 39 Cardozo Arts & Ent. L.J. 903 (2021).
Available at: https://larc.cardozo.yu.edu/cardozoaelj/vol39/iss3/5