More Than IP: Trademark Among the Consumer Information Laws

Part I begins the inquiry by describing trademark’s connection with other consumer information laws. In many cases optimal trademark policy—by whatever criteria—depends on the state of play in another regime. This complicates trademark’s development in multiple ways. It is not simply a problem of determining how another body of law treats the related issue. Identifying the relevant parallel regime is not always easy. Indeed, sometimes the laws most pertinent to the production of consumer information are more general in nature—think, for example, of the role that simple trespass law plays in determining what we know about how our meat is raised—and therefore easy to overlook. The problem underscores the complexity of the larger “ecosystem” of generators and users of consumer information and the laws governing them. The various components of this broader structure may interact opaquely. The resulting lack of clarity has consequences for trademark’s future development and the question of how responsibility for that development should be divided between judges and legislators. The difficulty of crafting rules with an eye toward interrelated doctrines may be reason to question the wisdom of a judge-driven, “common law” approach to trademark decisions. Alternatively, courts should look for ways to accommodate consumer information law’s variety by simplifying trademark issues as much as possible in order to minimize the need for crossdoctrinal assessments. The balance of the Article explores one approach to simplification. Part II develops the idea that trademark law might benefit from “offloading” some of its expanding scope to other consumer information regimes. Claims at trademark’s peripheries often address subject matter that is the core concern of other causes of action. Letting such claims into trademark creates several problems. It risks upsetting settled policy tradeoffs in other bodies of law, raising accountability issues when those understandings were the product of political settlement. Importing such claims is also detrimental to trademark law. Although the external body of law will have doctrines designed to limit the reach of particular claims, these limitations may not translate into trademark law. The imported claim may therefore assume an unexpected scope, free of the doctrines that would normally cabin its reach. The resulting instability undermines trademark law’s coherence and transparency as courts force new claims into now-ill-fitting doctrinal boxes. Offloading such causes of action from trademark law into more appropriate regimes offers an avenue for improving the quality of trademark doctrine. The remainder of Part II gives several examples while acknowledging some limits to this approach