Prof. Lunney on the De-evolution of Trademark Law, and Why It Should Change

October 12, 2017

Lunney_Glynn1Texas A&M Law Professor Glynn Lunney

In his latest piece of scholarship, forthcoming Summer 2018 in the California Law Review, Professor Glynn Lunney examines the incentives that lead parties to litigate and how those incentives bias the trademark cases that come before the courts and how courts perceive them.

“It’s a different look at trademark law than what we’ve seen before,” Lunney said of his article, "Trademark Law’s De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly."

In the paper, Lunney argues that modern day trademark law has lost sight of its original intent, protecting consumers, and makes the case for why and how this should be remedied.

“Rather than focusing on whether the plaintiff or the defendant should win, we should be focusing on how the consumer can win, specifically by supporting more effective competition,” he said. “It’s a shift away from the self-interest of trademark plaintiffs and toward trademark reform in the public interest.”

Lunney’s article proposes a series of reforms to encourage trademark defendants to fight for pro-competitive trademark law, specifically by changing the incentives for bringing and defending trademark lawsuits through enhanced attorneys’ fees, broader antitrust counter claims, and the participation of neutral witnesses to keep the court’s perspective consumer-focused.

“Right now, we have an incoherent morass where current trademark law favors corporate welfare,” Lunney said. “I’m trying to reframe the question the court should be asking.”

He also proposes legislation to discourage anti-competitive trademark litigation. The Strategic Lawsuit Against Competition proposal is modeled on existing anti-SLAPP provisions, created in the wake of online reviews and restaurant owners filing Strategic Lawsuits Against Public Participation (SLAPP).

“In that instance, it’s hardly worth it for the individual consumer to fight it out in court, giving these businesses the power to effectively stifle the efforts of consumers giving honest reviews,” Lunney said. “Trademark litigation has a similar problem. It is hardly worth it for trademark defendants to fight for pro-competitive interpretations of trademark law. Trademark plaintiffs, on the other hand, have a strong incentive to bring anti-competitive trademark litigation in an attempt to throw sand in the gears of their competitors, raise their costs, and if possible, drive them out of the market.”