This article argues that the question of whether we should treat digital files as relevant goods is irreducibly one of policy, and it should not be reduced to mere formalism. Digital files should be treated as goods only when consumers’ interactions with the files sufficiently resemble their interactions with physical goods that they warrant the same treatment. In particular, this article argues that digital files should be treated as goods only when the origin of the files as such (not the content of those files) is material to consumers. That may turn out to be relatively rare. Indeed, this article suggest that a world of greater digitization might well be a world in which trademark law has less relevance relative to design patent and copyright.
Mark P. McKenna & Lucas S. Osborn,
Trademarks and Digital Goods,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol92/iss4/2