Trademark morality.

AuthorBartholomew, Mark
PositionIntroduction through II. Detecting Unfairness B. Intent, p. 85-122

ABSTRACT

This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant's use of a mark, not the use's morality. Nevertheless, under this utilitarian facade, judicial assessments of highly charged questions of right and wrong are also at work. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decision making, often without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly those deemed to insufficiently invest of themselves in the marketplace, results in an overbroad consideration of the defendant's intent. Judicial conceptions of sexual propriety guide trademark dilution law. Loyalty to certain views and markers of nationhood explain judge-made rules that privilege particular meanings for national symbols over consumer welfare. These three examples show that moral intuition can produce very bad trademark doctrine. The Article concludes that moral concerns will inevitably influence judges, but they will do less harm if, instead of being hidden behind economic rhetoric, they are brought to the surface and interrogated just like any other technique of legal argument.

TABLE OF CONTENTS INTRODUCTION I. THE ROLE OF MORAL JUDGMENT IN LEGAL DECISION MAKING A. What Is Morality? B. Morality's Current Disfavor in the Law C. Morality and Legal Decision Making 1. Moral Judgment 2. Effect on Judges II. DETECTING UNFAIRNESS A. Personal Investment and Moral Nature B. Intent C. Privileging Use of Personal Names III. MAINTAINING SEXUAL PURITY A. Biology, History, and Sexuality B. Sexuality and Modern Trademark Law IV. PROTECTING THE NATION-STATE A. Territoriality and National Loyalty B. Respect for Symbols of National Authority V. FINDING A BETTER ROLE FOR MORAL ARGUMENTS IN TRADEMARK LAW CONCLUSION "The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds." (1)

INTRODUCTION

Looking at modern trademark jurisprudence, it appears that, at least in one area of the law, Holmes's cautionary statement has been taken to heart. The legal community today typically frames trademark law through the lens of efficiency. Judging from published decisions and law review articles, trademark law's prime directive is to remove obstacles from the consumer experience. (2) As noted by one trademark scholar, "Current thinking about trademark law is dominated by economic analysis, which views the law as a system of rules designed to promote informational efficiencies." (3) According to this line of thinking, by preserving the signaling power of particular words and symbols, trademark protection reduces consumer search costs and prevents wasteful confusion. This protection must yield only when consumers derive an even greater informational benefit from a defendant's use of another's trademark. (4)

The focus on efficiency suggests a cold, dispassionate, and rational approach to questions of trademark protection, one that disclaims ethical considerations. What matters are the consequences, particularly for consumers, of a particular use of a mark, not the use's morality. As one court recently explained: "[T]rademark law [is] not [a] matter[] of strong moral principle. Intellectual property regimes are economic legislation based on policy decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole." (5) Given this predominant thinking, judges are criticized when they stray from the focus on economic consequences and appear to apply their own moral intuitions to a trademark dispute. (6)

Nevertheless, under the surface, a very different rationale than the economic justification described above guides many trademark decisions. Consider the following:

* Embedded within trademark doctrine are evaluations of the "good faith" of the defendant, particularly in the multiple factor tests for determining likelihood of confusion and likelihood of dilution. (7)

* Empirical study suggests that evidence regarding intent, rather than being an afterthought or only a small portion of the analysis, is of "decisive importance" and a finding a bad intent "creates ... a nearly un-rebuttable presumption" in favor of the plaintiff. (8)

* Courts take particular care to police unauthorized use of marks in sexual contexts, even going so far as to create a full-fledged presumption of trademark dilution when a defendant uses a mark to sell sex-related products. (9)

* Even if United States consumers are aware of a foreign mark and unaware of a domestic business using the same mark, courts will award priority rights in the mark to the domestic business. (10)

* A finding that a trademark contains "immoral ... or scandalous matter," may bring "national symbols ... into contempt, or disrepute," or consists of "the flag or coat of arms or other insignia of the United States" renders the mark ineligible for federal registration. (11)

In short, despite the dispassionate, economically-focused language typical of modern trademark jurisprudence, judicial assessments of highly charged questions of right and wrong are also at work. (12)

Uncovering the specific moral intuitions behind trademark jurisprudence is not easy. Judges make efforts to keep the emotional architecture of trademark law hidden as it is considered inappropriate for a judge to allow her moral sentiments to determine legal winners and losers. Trademark's decision makers take pains to explain that moral considerations are irrelevant when assessing the validity of a proposed mark or the likelihood of consumer confusion. (13) Even in the rare circumstance in which they hint at application of a moral standard, judges take care to frame such standards in an ambiguous and generalized manner that provides little traction for a reader trying to map the contours of a judge's ethical reasoning. (14)

Notwithstanding this lack of transparency, it is possible to identify the moral reasoning employed by judges in trademark disputes, for a couple of reasons. First, the boundary between law and morality in trademark is not watertight. Recent research in the field of moral psychology identifies a particular cognitive structure at play when people render moral judgment. (15) Psychologists have also pinpointed five foundations of moral concern, subject areas that are likely to trigger intuitive moral judgment in place of reasoned deliberation. (16) Despite judicial protestations to the contrary, analyses of legal decision making suggest that moral heuristics often guide doctrinal decisions. (17)

Second, there is a continuity to the moral concerns surrounding trademark law that makes their presence and significance easier to identify. This Article concentrates on trademark jurisprudence at two particular time periods: the beginning of the twentieth and twenty-first centuries. The beginning of the twentieth century represented a watershed moment in American trademark law, which morphed from a primitive, rarely consulted area of the law into a major economic guidepost for a new mass commercial society. (18) Courts in this formative period were less squeamish than their successors about using moral principles in decision making. (19) This was a time when technological and demographic change disrupted antebellum commercial ethics. (20) The general public was aware of and concerned with the moral implications of business behavior. (21) Into this uncertain environment, business leaders, religious authorities, and lawmakers announced new commercial values. (22) By showing that the same ethical approaches that shaped trademark law at its beginnings also determine decisions a century later, I hope to prove that these approaches form an unbroken, yet largely unstated, bedrock of the law.

To that end, Part I of the Article examines the properties of moral judgment and how they might be applied to legal decision making. A raft of experimental research investigating moral intuition is just beginning to come into focus, and it offers new insights into how all humans, including judges, make decisions. Part II looks to one particular moral construct identified by this research, the belief in rewarding personal investment, and how it has shaped trademark doctrine. Part III examines how courts, perhaps quite unknowingly, use notions of sexual purity and propriety to pick winners and losers in trademark disputes. Part IV studies the nationalist sentiments that led to the creation of a territorial principle in trademark law as well as prohibitions on particular marks deemed damaging to national symbols. Early twentieth-century jurisprudence is the starting point for all of these arguments. The doctrines it spawned remain a part of American trademark law, even though they do little to promote consumer welfare. The Article's final Part maintains that moral intuition negatively influences trademark law and this influence is, to some degree, inevitable. Nevertheless, the quality of trademark decisions will be improved if judges articulate their moral concerns instead of hiding them behind the language of economic efficiency.

  1. THE ROLE OF MORAL JUDGMENT IN LEGAL DECISION MAKING

    A few things need to be mentioned about moral judgment before turning to its particular use in trademark jurisprudence. As explained in this Part, today's judges disfavor explicit appeals to morality. (23) Nevertheless, moral sentiments likely play a significant role in trademark jurisprudence. Moral foundations theory--a new and influential model of human decision making based on psychological...

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