Purposes and limits (or not) in modern trademark law: Wendy Gordon, Rebecca Tushnet RT: Stacey Dogan’s statement that as a practical matter we need justifications for copying/free riding—I didn’t want to believe it, but I’m coming around to that view. Mark Lemley says no, all we need to make the trademark system work is protection of consumers, properly understood. But I don’t think that’s sustainable in part because there are so many different ways to protect consumers, so many aspects on which competition might help or hurt them—price, quality, diversity. Because of the factual indeterminacy of many consumer protection justifications, we have a hard time making headway on consumer protection “properly understood.” So, it’s much better to admit that sometimes we are letting other interests serve as trumps. Not everyone will agree on what’s a useful heuristic for…
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