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Calboli, Irene --- "Reconciling Individualism and Collectiveness in Trademark Merchandising in the United States" [2012] ELECD 201; in Rosén, Jan (ed), "Individualism and Collectiveness in Intellectual Property Law" (Edward Elgar Publishing, 2012)

Book Title: Individualism and Collectiveness in Intellectual Property Law

Editor(s): Rosén, Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857938978

Section: Chapter 10

Section Title: Reconciling Individualism and Collectiveness in Trademark Merchandising in the United States

Author(s): Calboli, Irene

Number of pages: 22

Extract:

10. Reconciling individualism and
collectiveness in trademark
merchandising in the United States
Irene Calboli*

1. INTRODUCTION

Trademark merchandising ­ the use of trademarks on promotional products
for profits or simply as advertising ­ constitutes a ubiquitous phenomenon
in today's society.1 Despite this popularity, however, this booming business
technique also constitutes a highly controversial topic and its acceptance
under the rule of law still remains unclear in the United States. Not surpris-
ingly, the disagreements surrounding the debate on trademark merchan-
dising reflect the historically opposing views of trademark scholars and
practitioners over the scope of trademark protection.2 Arguing that the


* Associate Professor of Law, Marquette University Law School. This chapter
summarizes the analysis of the practice of trademark merchandising in the United
States that I have originally developed in the article, `The Case for a "Limited"
Protection of Trademark Merchandising', 2011 Ill. L. Rev. 865 (2011). Accordingly,
parts of this chapter are adapted from this article. I would like to thank the
participants at the 2010 ATRIP Congress "Individualism and Collectiveness in
Intellectual Property Law," University of Stockholm School of Law, May 23­26,
2010, and in particular Maggie Chon, John Cross, Rochelle Dreyfuss, Graeme
Dinwoodie, Ysolde Gendreau, Annette Kur, David Llewellin, Alberto Musso,
Alexander Peukert, Lisa Ramsey, Jerome Reichman, Jan Rosen, Lars Smith, Jens
Schovsbo, Peter Yu, and Dafne Zografos for helpful conversation, comments, and
suggestions. I also thank Marquette University Law School for research support,
and Michael Soule and April Ashby for research and editorial assistance.
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