Giving the Wrong Impression: Catching On to 2(a)'s False Suggestion of a Connection

The framers of the Lanham Act were distressed. What if someone tried to register DUCHESS OF WINDSOR lingerie, KNUTE ROCKNE whisky or NOTRE DAME gin? Gasp! "We must," they surely thought, "prevent embarrassment to celebrities and institutions and at the same time impede those who would free ride off of their reputations." Little did they know that their statute would later safeguard the boozy song title "Margaritaville," the NAFTA treaty and a depiction of a three-dimensional mailbox. Anne Gilson LaLonde will tackle all of these in this pamphlet.
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The framers of the Lanham Act were distressed. What if someone tried to register DUCHESS OF WINDSOR lingerie, KNUTE ROCKNE whisky or NOTRE DAME gin? Gasp! "We must," they surely thought, "prevent embarrassment to celebrities and institutions and at the same time impede those who would free ride off of their reputations." Little did they know that their statute would later safeguard the boozy song title "Margaritaville," the NAFTA treaty and a depiction of a three-dimensional mailbox. Anne Gilson LaLonde will tackle all of these in this pamphlet.

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Table of Contents

TABLE OF CONTENTS

I. Introduction

II. Trademark Protection Without Trademark Rights or Consumer Confusion
A. No Trademark Rights Needed
B. No Likely Consumer Confusion Needed

III. Publicity and Privacy Rights, Not Likelihood of Confusion
A. Evolution of Today’s Standard
B. Rights of Publicity and Privacy
C. Private Right, Not Public Interest

IV. Current False Suggestion of a Connection Standard
A. The Standard Itself
B. The Role of Intent
C. Standing
D. Defenses
E. First Amendment Implications

V. Factor One: Same as or Closely Approximating Claimant’s Previously-Used Name, Identity, or Persona
A. Persons, Living or Dead, Institutions, Beliefs, or National Symbols
B. Name, Identity, or Persona
C. Same or Close Approximation
D. “Previously-Used”

VI. Factor Two: Mark Points Uniquely and Unmistakably to Claimant

VII. Factor Three: Claimant’s Fame or Reputation Would Cause Consumers to Presume a Connection
A. Standard for Fame or Reputation
B. What Type of Association is Needed

VIII. Factor Four: Claimant is Not Connected with the Mark Owner

IX. Conclusion