The rules of trade emblem law need to be reevaluated to determine whether they are effective rules of language. Part I of this article addresses whether the basic principles of trade emblem law make sense as rules of language. Although the new perspective certainly requires a rethinking of the existing rules, Part I demonstrates that most of the basic principles are valid as rules of language. The linchpin of the entire system—the grant of exclusive rights to one seller—will generally encourage efficient communication and limit deception. Similarly, the rules of priority, registration, and infringement serve these same ends. Part II explores some of the more difficult questions of trade emblem law, such as dilution, reverse palming-off, and succession to rights. It is here that a language-based analysis has the most to offer. Much of the current confusion is created by legislatures and courts that have not fully recognized that trade emblems convey several distinct messages. Recognizing the multiple messages in a trade emblem makes it possible to take a reasoned approach to these difficult issues. This reasoned approach, in turn, reveals significant flaws in the current rules. Much of the discussion in this article emphasizes United States trademark law. The analysis is not limited to trademarks, however. The principles of a language analysis fully apply to service, collective, and certification marks, and in large part, to trade names. Further, a language analysis is confined neither to the United States legal system nor the English language. It extends to all legal systems that follow the basic model of providing exclusivity in trade emblems.
John T. Cross,
Language and the Law: The Special Role of Trademarks, Trade Names, and Other Trade Emblems,
76 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol76/iss1/4