Over the years I’ve come to the conclusion that trademark law and policy in the United States is likely the least appreciated area of intellectual property law, but also likely the most important. Trademarks importantly allow the benefits of goodwill to be realized. Consumer perception guides the development of U.S. trademark law for better or worse, as demonstrated by the U.S. Supreme Court’s recent Booking.com case. This makes the boundaries of the legal protection provided by trademark law somewhat difficult to cabin-in and may facilitate over-reaching and over-enforcement with the danger of squelching free speech, competition and innovation.
A benefit of intellectual property is its ability to allow owners to give it away. The recent Open COVID Pledge is a good example of IP philanthropy. So, how do trademarks aid in philanthropy? One way trademarks facilitate philanthropy is by allowing people and entities to donate money to what they believe are worthy causes. In the United States, we’ve had issues with people choosing trademarks similar to the trademarks of well-regarded charities and profiting from confusion from those marks. I’ve written about that, here. It seems that related problems have arisen from the Black Lives Matter movement—particularly given its non-hierarchical structure. MarketWatch has a helpful article discussing the issues, here. Charitable causes seem to be an area where greater trademark enforcement would be needed and welcome.
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