Antitrust vs. Trademark Law

by Stephan Kinsella on June 13, 2011

As I have discussed elsewhere (State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law), the state grants monopolies (patents and copyright) then penalizes companies for using (“abusing”) them, in contravention of state antitrust law–so that there is a “tension” between these state laws.

And now here’s an example of a similar tension between trademark–another state granted monopoly–and antitrust law: Dechert Attorneys Representing Clients in Possible Apparel Licensing Matter with NCAA Colleges, where lawyers demand colleges stop enforcing trademark rights–or face antitrust action (h/t Skip Oliva).

Yet another demonstration that state IP is of course a grant of monopoly (see “Are Patents “Monopolies”?“).

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Ryan June 13, 2011 at 11:34 am

Mr. Kinsella,

Doesn’t this problem stem from how federal courts have interpreted the Lanham Act? At common law, a trademark holder had to show use as a trademark qua trademark; that is, a holder had protection to the extent he used it to signify the source of his goods. And this right was limited to its source signifying function; it didn’t confer a right in gross. But now, especially when it comes to collegiate licensing, courts treat trademarks like a copyright or patent. Which leads to absurdities like the University of Alabama barring its cheerleaders from buying their own championship rings by threatening an infringement suit, even though the girls obviously wouldn’t suffer a likelihood of confusion as to the source of the rings.

So isn’t this antitrust suit just a backdoor way to undermine a dubious interpretation of the Lanham Act?

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