Monday, February 13, 2023

Lemley & McKenna: Trademark Spaces

Where a trademark is located matters. Some physical spaces on products are more likely to contain trademarks. Some obvious examples are the left breast of a t-shirt, the side or tongue of a sneaker, or the label on the front of a food container.  Consumers are more likely to find trademarks located in those spaces, and they are probably more likely to perceive features as trademarks if they are in those locations.

In their fascinating new article, Trademark Spaces and Trademark Law’s Secret Step Zero, Mark Lemley and Mark McKenna draw out the relevance of physical space for trademark protection, and in particular for non-verbal marks like logos and trade dress.  The authors argue that where a trademark is located determines how the law currently treats it, but that this is currently done by judges and trademark examiners as a "secret step zero." They think this is not ideal. Consideration of trademark spaces should instead be both more explicit and better thought-out. 

The article is now published in the Stanford Law Review (and posted here on SSRN).