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19 J. Intell. Prop. L. 357 (2011-2012)


A series of recent cases implicate the extent to which trademark law can be used to control creative content. The possibility of using trademark law for that purpose obviously creates a potential conflict with copyright law, which ordinarily sets the rules for use of creative material developed by others. Unfortunately, despite its attraction to boundary questions in trademark law, the Supreme Court‘s Dastar decision—its lone decision demarcating trademark and copyright law—remains controversial and its scope somewhat unclear. This Essay argues that Dastar should be understood, or at least should be extended, to rule out any claims based on confusion that is attributable to the content of a creative work, however that claim is denominated. This approach is better than ruling out trademark protection for all copyrightable works, even though it sweeps out some claims that do not raise the same concerns about conflict with copyright. It is better both because it is more consistent with trademark and unfair competition law‘s traditional role and because those other claims ought to be unsuccessful in virtually all cases in any event. This approach also has the virtue of creating certainty and allowing courts to dispose of cases early. In this respect, Dastar could play a role similar to TrafFix: Dastar would reserve to copyright law the rules for use of creative material, much as TrafFix reserves to patent law rules for control of useful features.



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