Misappropriation of Trademark

June 16, 2012

The dominant view of misappropriation doctrine fits trademark law poorly. It is at odds with contemporary theory and the reasons for protecting intellectual property. A more nuanced view of the Supreme Court’s germinal misappropriation case leads to a misappropriation doctrine consistent with both externality theory and public goods theory. When viewed this way, IP theory and misappropriation doctrine then lead to rules reflecting a balance between incentive creation and free access. Applying this nuanced interpretation to the issue of Internet initial interest confusion suggests that keyword advertising promotes competition and reduces search costs more than it interferes with incentives to engage in trademarking activity.