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Cardozo Arts & Entertainment Law Journal

Abstract

Trademark laws were traditionally designed based on the belief that there was an infinite supply of eligible registrable signs. However, current studies show that trademark supply is finite, and that we are close to exhausting it. While trademark protection allows proprietors to distinguish between their goods or services from others, and allowing the public to do the same, the extent of such protection requires constant legal attention and reconsideration which, as contemporary trademark policies show, does not take place in the expected frequency.

One of the immediate consequences from this lack of attention is the rapid growth in strength of certain trademarks resulting in, the phenomenon of what we call, predatory trademarks. Usually, these signs are controlled by giant enterprises who aggressively exercise their control over the trademark in ways that enclose the introduction of new trademarks, thus harming the number of marks available to the public. By allowing this phenomenon, courts and modern trademark laws fail in striking the right balance between the competing interests revolving around the meaning of owning a trademark, resulting in overall harm to competition and consumer welfare.

This Article delves into the concept of predatory trademarks taking adidas's three stripe trademark as its organizing principle. The Article shows that despite recent cases which signal that courts are more willing to deal with the problem of predatory trademarks, they are still not adequately facing the problem. Given the global strength of certain trademarks, this Article presents and analyzes cases from different jurisdictions showing that the phenomenon of predatory trademarks is not only borderless but has a common detrimental impact on consumers and new traders.

The Article offers comparative criticism of the current judicial approach in the European Union, Israel and South Africa. The rulings examined address the public contribution to the creation of famous trademarks, the limitless protection the law provides these marks, and the need to recognize the finite number of viable signs. Without perceiving these effects our understanding of the future design of the protection afforded to these and similar trademarks, will continue to favor limiting consumer welfare, and harm to legitimate market competition.

Disciplines

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

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