TRADEMARK LAW AND THEORY – Grinvald Review

Vol. 2 No. 1 (September 2011) pp. 23-34 

TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH, edited by Graeme B. Dinwoodie and Mark D. Janis. Edward Elgar, 2008. 539 pp. Paperback $75. 

Reviewed by Leah Chan Grinvald
Saint Louis University School of Law
lgrinva1@slu.edu 

Trademark law has come into its own. Traditionally, trademarks were lumped together with patents as “industrial property,” with the law following suit.¹ With the rise in consumerism, marketing and globalization, trademarks and the law surrounding their protection has become important, separate and apart from other forms of intellectual property. After all, when more than half of Apple, Inc.’s valuation (deemed to be the world’s most valuable global brand in 2011²) derives from its trademarks,³ legal issues surrounding the protection of such wealth are bound to arise. In recent years, scholars have begun to focus their attention on this previously under-studied area. A testament to the richness of this recent scholarly upsurge in trademark law is Graeme Dinwoodie’s and Mark Janis’ compendium entitled, TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH. 

TRADEMARK LAW AND THEORY brings together a global collection of nineteen highly-respected scholars and is an excellent resource for practitioners, students, and trademark scholars, alike. Dinwoodie and Janis have handily split the compilation of articles into three topical sections, which helps guide the reader through the variety of theories and arguments presented. The organization also provides possible topical pathways to lead an advanced trademark law class or seminar, and thus is helpful to the educator as well. As a note of caution, however, it should be made clear that TRADEMARK LAW AND THEORY is not intended for the uninitiated. Rather, the reader needs at least a baseline understanding of the standard accounts of trademark law in order to appreciate the scholarship represented in this collection. This is especially true in the first topic, entitled “Methodological Perspectives,” which provides an array of theoretical frameworks through which trademark protection can be viewed. Ranging from historical to semiotics to economic perspectives, each of the five articles in this section gives a slightly different account of trademarks and the law surrounding their protection. 

It has become a truism that the scope of trademark protection has been on an expansionist path since the early twentieth century.⁴ From an expansion in the subject matter that may comprise a trademark to an expansion in the scope of likelihood of confusion (the standard by which trademark infringement is tested), trademark law has progressively expanded in one direction: toward providing a greater scope of rights to trademark holders.⁵ While one of the more standard explanations for such expansion has been that trademarks are being treated as “property,”⁶ Lionel Bentley questions this explanation from a historical perspective (pp.3-41). Bentley provides a well-documented historical account that traces the term “property” as applied to trademark rights to the mid-to-late nineteenth century (pp.15-30). Bentley’s analysis shows that historical material can help with tracing different reasons for the current trend of expansionism and in explaining why the term property did not have a transformative effect on trademark rights in the nineteenth century. Bentley concludes that it has likely been a transformation of the substantive meaning of the term “property” since the nineteenth century, rather than an adoption of a property rhetoric, that has resulted in an expansion of trademark rights (p.41). 

From Bentley’s historical perspective, the reader is treated to a semiotic account of trademark law and culture, through Barton Beebe’s thought-provoking essay (pp.42-64), which provides the reader with an alternative theoretical justification for supporting and understanding certain trademark doctrines. Semiotics, as “the study of signs and sign systems” (p.42), brings a structural approach to viewing trademarks, which is a different account than the standard economic one (p.43). Beebe argues that the application of semiotics to trademark doctrine is a worthwhile enterprise because the standard efficiency arguments of economics do not fully account for certain trademark doctrines such as trademark distinctiveness and trademark dilution (p.43). In fact, the semiotic, triadic structure of trademarks (the triadic structure consisting of a signifier (the trademark itself, like APPLE), a signified (the meaning or goodwill attached to APPLE, such as quality consumer electronics) and a referent (the tangible product that APPLE signifies, such as personal computers or cell phones) (p.45)), appears to be an implicit assumption in the standard economic account (p.48). But due to the economic rationale’s failure to recognize the implicit adoption of the triadic structure, certain troublesome doctrines, like trademark dilution, are presented as simply another form of trademark infringement. However, when analyzed through the semiotic lens, it becomes apparent that dilution is far more problematic than already acknowledged, as it entails the granting of “absolute property rights, against the world, in that mark” (p.59). Beebe himself leaves implicit that this expansion of rights through protection against dilution may not be what anyone wants, even those in favor of the economic account. Perhaps more disturbing is that it would appear a semiotic explanation of the cultural implication of trademarks in modern society hints that further expansion of trademark law is likely in store in order to meet the consumer demand for “signs, distinctions, differences” (p.64). 

However, a re-examination of the search costs rationale (the economic justification for trademark protection) may provide some check on this trend, as Stacey Dogan and Mark Lemley suggest in their essay (pp.65-94). Dogan and Lemley argue that if taken to the extreme, the search costs rationale may lead to a reversal of the goal of the economic justification for trademark law and lead to an anti-competitive marketplace (p.66). Therefore, Dogan and Lemley proffer a different application of the search costs rationale: one that would serve to limit trademark protection to where search costs are lowered, but without going too far in the other direction. The reasoning proffered by Dogan and Lemley is that each of the doctrines discussed in the essay present search costs rationales on both sides of protection: finding in favor of the trademark holder may reduce competition, whereas finding in favor of limiting trademark protection may increase confusion and thereby search costs (p.84). Dogan and Lemley argue that courts will generally find in favor of limitations in a way that attempts to benefit the most number of consumers, where overall search costs would be lowered or where competition concerns are paramount. Additionally, Dogan and Lemley offer useful modifications in the application of these doctrines to provide courts with the ability to appropriately apply limitations. 

While the first three essays in the “Methodological Perspectives” section looks at justifications of trademark law and its expansion as a whole, the last essay in the section by Clarissa Long (pp.132-147), provides an examination of the forces that have created and shaped a particular portion of trademark law, trademark dilution. Dilution is one of the more recent expansions in trademark law, beginning in the twentieth century.⁷ Although Congress codified federal dilution protection in 1995, many courts applying the doctrine were unwilling to broadly interpret the statute, culminating in the Supreme Court’s narrowing of the scope of the law in 2005.⁸ Not long after this Supreme Court decision Congress revised the statute to reinstate its expansive scope in 2006.Long examines this tug-and-pull of interpretation and legislation, providing a number of insightful explanations for why Congress adopted dilution in the first place and why courts were eager to narrow its scope (pp.142-43). Unfortunately for the reader, at the time of Long’s writing, courts had not had enough time to fully interpret the new provisions of the federal dilution law (p.146). However, Long is optimistic and argues that courts should continue to act in conformity with their past actions as a counterweight to the Congressional expansion of dilution.⁹

For a slight change in pace, the fourth essay in the series, Robert Burrell’s Trade Mark Bureaucracies (pp.95-131), looks at justifications for the registration of trademarks, which as he rightly notes, is an under-examined area (p.95). The first main justification Burrell examines in-depth is the “clearance cost” justification. This justification is premised on the argument that a trademark registry provides a certain level of comfort to the trademark applicant and to the consuming public: with a simple search, all who are interested know which marks are taken by others. Burrell quickly debunks this justification by showing the problems of false negatives, false positives and the quality of the information provided by registries (pp.98-109). In addition, Burrell examines two additional justifications, first, that registration can provide protection to a trademark holder prior to actual use of such mark and second, that registration creates the property rights in the trademark. Concluding that neither of these provides sufficient justification for registration, Burrell concedes that abolishing the registration system would be extremely difficult. Instead, Burrell suggests a number of lines of thought that could be used to reform the registration system, including calling attention to the current emphasis on “customer service” that may be undermining the policing of applications. 

The second section in TRADEMARK LAW AND THEORY turns the reader to “International and Comparative Dimensions” of trademark law. Unfortunately for the reader, this section would be more appropriately named “International and European Perspectives,” as the essays (with the exception of Burton Ong’s bilateral free trade agreement-focused essay) are all focused on European issues of trademark law. The section could have been more well-rounded if one or two of the essays were focused on other areas of the world, such as Latin America, the Middle East or Asia. This is not to say that these essays are not invaluable, to the contrary, these essays provide an American reader with an insight into two of the top issues in current European trademark law: harmonization of the laws and parallel importation. These insights are desperately needed, as a good deal of discussion of American trademark law takes place without an inclusion of such comparative dimensions. 

For example, Annette Kur’s essay, Fundamental Concerns in the Harmonization of (European) Trademark Law (pp.151-176) and Gail Evans’ essay, Substantive Trademark Law Harmonization: On the Emerging Coherence Between the Jurisprudence of the WTO Appellate Body and the European Court of Justice (pp.177-203), provide the American reader with a perspective of trademark law that really does not get raised in the United States. Since American trademark law is federally-based (for the most part),¹⁰ it is rare that discussions of harmonization of trademark legal doctrines across the fifty states arise. In addition, with the ambiguous nature of World Trade Organization (WTO) Appellate Body rulings vis à vis American domestic law,¹¹ the harmonization of the United States Supreme Court decisions (or any other U.S. federal court) with the WTO rulings is not typically at the top of the list of trademark law concerns in the U.S. Therefore, the essays by Kur and Evans are a welcome addition to the average American trademark law scholar’s (or student’s) knowledge base. And while Thomas Hays’ essay, The Free Movement (or Not) of Trademark Protected Goods in Europe (pp.204-228), is focused on European concerns of parallel imported products, with concerns regarding parallel importation into the United States on the rise,¹² this essay raises important and interesting issues for any trademark scholar. 

The last essay in this section will be of interest to the internationally-minded American trademark law scholar or student. Burton Ong provides a concise overview of the trademark law provisions of the various bilateral free trade agreements that the United States has entered into over the years (pp.229-255). Ong shows that there are at least three categories of provisions that the United States includes in all of its bilateral free trade agreements. Ong posits that these similar provisions (in the “TRIPS-plus” category) across the “web” of bilateral free trade agreements provides “a clear factual basis for those who have criticized the use of bilateral [free trade agreements] as a ‘forum-shifting’ device of sorts to set higher intellectual property standards outside of multilateral regimes such as the TRIPS Agreement” (pp.248-250). Although Ong finds this movement towards TRIPS-plus trademark law protection worrying (pp.254-255), he concludes on a hopeful note (echoing that of Long’s conclusion), which is that in the implementation and interpretation of these various provisions, courts will be skeptical in applying these provisions in a broad sense (p.255). 

The third, and last section of TRADEMARK LAW AND THEORY is entitled “Critical Issues,” and presents four subsections of a variety of issues; the first two issues (free speech and limiting trademark rights) have plagued scholars of trademark law during its expansion over the past century and the last two issues (traditional knowledge and the edges of trademark protection) are of more recent vintage. The first subsection, “Trademarks and Speech,” begins with a revisiting by Rochelle Cooper Dreyfuss of her groundbreaking work in trademark law and free speech interests from the 1990s (pp.261-293). Dreyfuss’ earlier work¹³ had recognized that the expansions in trademark law were placing pressure on the interests of free speech, with courts providing an increasing amount of protection to trademark holders of marks that were merely used in an expressive format (p.262). In this essay, Dreyfuss examines the doctrinal approaches that have been taken globally to resolve this tug-of-war between protection and expression (pp.267-283), and argues that in the end, the better normative approach is for lawmakers to take into account the recent scientific evidence that shows how consumers actually deal with confusion (pp.287-293). Dreyfuss concludes that some confusion and even dilution is inevitable: “In an economy in which consumers have immediate access to products and services everyone on the globe, in a legal environment in which symbols are protected in multiple ways, in a culture in which trademarks constitute a significant medium of expression, freedom from all sources of confusion or dilution is simply not achievable” (p.293). 

Moving from general expressive uses of trademarks, Rebecca Tushnet’s essay (pp.294-323) examines an important connection between the First Amendment and trademark law (including false advertising law). Tushnet points out that if the First Amendment’s increasing concern for commercial speech were applied wholesale to trademark law, many standard assumptions and doctrines would be overturned (p.303). The crux of the problem is that First Amendment jurisprudence treats true and false commercial speech as polar opposites; trademarks and advertising, however, can be confusing to some and helpful to others. But the current First Amendment jurisprudence cannot take into account this type of “shades of gray” analysis. Tushnet suggests that each area of the law could learn from the other, concluding that “[t]here are insights to be had from a hard look at the First Amendment from an unfair competition perspective, as well as from a hard look at unfair competition law from a First Amendment perspective” (p.323). 

The last essay in this subsection (pp.324-341), provides a fresh look at the overlap between trademarks and expressive uses from the perspective of both the trademark owner and third party user. In particular, Michael Spence is concerned that the current justifications for “allusive uses” do not provide sufficient support for restrictions against such use (p.326). In other words, Spence seeks to provide an alternative justification for the doctrine of trademark dilution, as it is more commonly referred to in the United States. The justification proffered by Spence is one of “expressive autonomy,” which takes into account the right of the trademark owner to restrict allusions to its registered trademark, as well as the right of a third party user of the same trademark (p.331). On one side, the trademark owner should be free from a compulsion to express something that it has not chosen, as well as be free from subsidizing a message it does not want to be associated with (pp.331-335). On the other side, trademark users should be allowed the right to allusive uses, despite these rights of the trademark owner (p.337). Therefore, Spence identifies two situations where third parties should be permitted to make allusive uses of registered trademarks: first, where the use is necessary for the third party to “adequately” refer, comment or identify his own products (p.337), and second, where the trademark at issue has become an “important indexical function” that “the mark may have become a kind of public forum” (pp.338-339). Spence concludes his essay by arguing that it is this ability to allow both the trademark owner and the third party user limited rights to restricting allusive uses, on the one hand, and allowing the same on the other, that makes an expressive autonomy justification “particularly attractive” (p.341). 

The next subsection, “Limiting the Scope of Trademark Rights,” can be viewed as an extension of the first subsection in that the authors are discussing ways in which trademark rights can be cabined. Instead of focusing on the free speech concerns of expansive trademark rights, however, the three authors in this subsection each offer a different perspective. Beginning with Jennifer Davis’ essay (pp.345-367), the reader is exposed to an examination of two similar traditions of cabining expansive trademark rights, one in the United Kingdom and one in the United States, with one tradition more vulnerable to modern limitations than the other. Davis traces a tradition of a “trademark commons” in the United Kingdom from the late nineteenth century all the way to the late twentieth century, where British judges protected the right of competitors to use registered trademarks that were of descriptive or “laudatory” origins (pp.347-353). In contrast, the tradition in the United States has been one of a “public domain,” borrowed from copyright law (p.361). Davis posits that it is in the different approaches to the trademark commons and the public domain that made the trademark commons vulnerable to “enclosure” (p.365). Although Davis does not explicitly state this, it would seem that an enclosure of the trademark commons has resulted in a limitation of the common law’s ability in the United Kingdom to cabin the expansive scope of trademark rights. 

Graeme Austin’s essay (pp.368-403) brings the reader back to the United States, where trademark infringement lawsuits are typically viewed with the belief that an application of the likelihood of confusion analysis encapsulates the appropriate, fact-based consumer response to a defendant’s use of plaintiff’s trademark (p.370). Austin proffers that trademark infringement is not this easily resolved, and nor should it be (p.370). Instead, Austin suggests that courts should be looking “a little harder at the role played by the ‘ordinarily prudent consumer’ in trademark law” (p.371). In so doing, Austin offers that courts would take into account differing policies that underlie trademark law, which would be beneficial as it would serve to cement the role that such policies play in the development of trademark law (p.371). Implicit in Austin’s essay is that if courts were to follow his suggestions, expansive trademark rights would be limited because it is not clear that an elimination of any likelihood of confusion is a benefit to consumers. Utilizing the fair use defense in trademark law as a foil, Austin points out that there are other policies, such as competition, which benefit consumers but may be reduced due to an over-emphasis on the “unassailable empirical truth” of trademark law’s likelihood of confusion (pp.370, 402-403). 

As the final essay in this subsection, Eric Goldman brings to light the very real dangers posed by over protection of trademarks in the online context, where consumers utilize trademarks in their assessment of products (pp.404-429). Unlike in the offline realm of consumer “word of mouth,” critical consumers in the online realm can be more powerful in shaping other consumers’ perceptions of products and brands (pp.404-05, 413). Although this creates for trademark owners unprecedented levels of accountability for their actions, Goldman warns that inconsistent application of current trademark doctrines threatens to undo this benefit for consumers (p.405). More specifically, Goldman insightfully shows how courts applying current doctrines such as the “use in commerce” analysis, the inchoateness of likelihood of confusion analyses and the narrowness of the trademark fair use defenses, can function to excise online word of mouth (pp.414-428). This allows trademark owners to delete from the Internet those reviews and opinions that are not favorable to the owners, which eliminates a crucial segment of information regarding products and brands that is beneficial to consumers. As a parting reminder of the importance of limiting these doctrines (of which Goldman provides several helpful suggestions), Goldman concludes, “[t]aken to the extreme, the depletion of negative online word of mouth reduces the utility of the Internet as a credible information resource, forcing consumers to seek other information sources that may have higher search costs” (p.429). 

The third subsection in this “Critical Issues” part of TRADEMARK LAW AND THEORY turns the reader to one of the more recent areas of trademark law scholarship, that of traditional knowledge. On the whole, scholarly attention to the area of traditional knowledge and its relation to trademark law is more recent, as Susy Frankel points out in her essay (pp.433-463). Historically, protection of indigenous peoples’ rights in traditional knowledge and cultural intellectual property has been considered more in light of patent or copyright protection (p.433). However, Frankel and the second essay author in the section, Coenraad Visser (pp.464-478), show the reader that thinking of traditional knowledge in terms of trademark law is not far off the mark. But both Frankel and Visser are quick to point out that trademark law has been used to both undermine protection in traditional knowledge, as well as boost it (pp.434, 464). Perhaps it is not surprising, then, that both scholars ultimately conclude that trademark law is not the perfect fit for protection of traditional knowledge. Frankel suggests that a trademark-type of system to protect cultural intellectual property in signs and symbols would be beneficial, but one that is specifically geared to the needs and concerns of indigenous peoples (pp.462-463). Similarly, Visser suggests that future protection of traditional knowledge may need to come in the form of alternatives to trademark law, such as the development of a “supranational information infrastructure,” or even a regime closer to copyright law (pp.477-478). 

The final subsection, “The Edges of Trademark Protection,” provides the reader with a contemplation of two under-explored trademark issues, that of trademark law’s intersection with copyright (pp.481-497) and trademark protection of product design (pp.498–522). Jane Ginsburg’s essay brings in a well-rounded view of copyright’s influence on trademark law: both the good and the ugly. Ginsburg provides a critical examination of the United States Supreme Court case, Dastar Corp. v. Twentieth Century Fox Film Corp., in which the Court strictly construed the federal trademark law’s “origin of goods” language of “false designations of origin” cause of action to simply physical goods (p.484). In doing so, Ginsburg argues that the Court “overlooks the role that the author’s name plays in conveying information material to the purchasing decision” (p.484). From the bad influence that the Court’s misapplication of copyright principles has had on trademark law, Ginsburg moves onto the good influence, positing that it is from copyright’s influence that free speech-based concerns are limiting the expansive scope of trademark protection (pp.490-497). Ginsburg concludes that the influence of copyright law on trademark’s fair use defense “shows us that copyright concepts and methodologies can salubriously influence trademark law, not by cordoning copyright off from trademarks, as in Dastar, but by recognizing and drawing the best from the overlap in subject matter and (where relevant) in the rationale for extending or denying protection” (p.497). 

Last, but not least, Alison Firth takes up an exploration of trademark law’s protection of product designs, the so-called “Cinderella” of intellectual property (p.498). Firth provides a true comparative look at the protection given to product designs under European, American, Canadian, New Zealand and Japanese trademark law (pp.498-522). Firth points out an interesting paradox: although trademarks “carry quality and ‘lifestyle’ messages as well as indications of origin,” product design, even where it is protected as a trademark, is held firmly to a traditional notion of a trademark, that of source of origin (p.501). Although Firth is cautious in drawing any broad conclusions from her comparative analysis, she does note that in certain jurisdictions, like the United States, where design protection is based on more narrow criteria, conversely, registration of shapes is more generous (p.522). 

All in all, TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH, provides the reader with an excellent overview of the threads of current trademark law scholarship. Each essay could easily stand on its own, but in such a well-rounded compilation such as Dinwoodie & Janis have put together, each essay adds context and value to the others. 

Suggested Citation: 2 The IP Law Book Review 23 (2011).

© 2011 Leah Chan Grinvald

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1. See, e.g., Paris Convention for the Protection of Industrial Property, July 14, 1967, 21 U.S.T. 1583, 828 U.N.T.S. 305.
2. See Millward Brown Optimor, BRANDZ TOP 100 MOST VALUABLE GLOBAL BRANDS: 2011, 5 (2011), available at http://www.millwardbrown.com/BrandZ/Default.aspx.
3. Compare Apple 10-K for 2010 (listing total shareholders’ equity as $47.8 billion) with BRANDZ TOP 100 MOST VALUABLE GLOBAL BRANDS: 2011, supra note 2, at 5 (listing Apple’s valuation at $153.3 billion).
4. See Mark P. McKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev. 1839, 1840 (2007).
5. See id. at 1900; Mark A. Lemley, The Modern Lanham Act and the Death of Common Sense, 108 Yale L.J. 1687, 1688 (1999); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 Notre Dame L. Rev. 397, 399 (1990).
6. See, e.g., Glynn Lunney, Trademark Monopolies, 48 Emory L.J. 367 (1999); Lemley, supra note 5, at 1687.
7. Some scholars trace the beginnings of dilution (as applied by the courts) to Yale Electric Corp. v. Robertson, 26 F.2d 972 (2d Cir. 1928). Frank Schechter’s seminal article, The Rational Basis of Trademark Protection, 40 Harv. L. Rev. 813 (1927), is considered the genesis of dilution in the United States. See Robert G. Bone, Schechter’s Ideas in Historical Context and Dilution’s Rocky Road, 24 Santa Clara Comp. & High Tech. L.J. 469 (2008).
8. See Federal Trademark Dilution Act of 1995, Pub. L. No. 104-98, 109 Stat. 985 (1995); Moseley v. V Secret Catalog, Inc., 537 U.S. 418 (2003).
9. See Trademark Dilution Revision Act of 2006, Pub. L. No. 109-312, 120 Stat. 1730 (2006) (codified at 15 U.S.C. §1125(c)).
10. Many (if not all) of the states maintain a set of laws and a system for trademark registration that mirrors that of the federal trademark law (the Lanham Act) and the United States Patent & Trademark Office. However, trademark infringement lawsuits brought on state law grounds are generally decided based on federal law precedent, with courts acknowledging the similarity of the two. The only area perhaps where state law may have a unique role in trademark infringement lawsuits is in the area of unfair competition. See, e.g., ITC v. Punchgini, 518 F.3d 159 (2d Cir. 2008) (revisiting trademark infringement case based on New York state law, which provides a protection against unfair competition not based on use of a trademark in New York, versus federal law which does not).
11. The United States has still not conformed to two adverse WTO dispute settlement rulings. See Panel Report, United States — Section 110(5) Copyright Act, WT/DS160/R (June 15, 2000); Dispute Settlement Summary, United States — Section 110(5) Copyright Act, WT/DS160, Summary of the dispute to date at Feb. 24, 2010) at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds160_e.htm (last visited on May 27, 2011); Appellate Body Report, United States — Section 211 of the Omnibus Appropriations Act of 1998 — AB — 2001-7 — Report of the Appellate Body, WT/DS176/AB/R (Jan. 2, 2001); Dispute Summary, United States — Section 211 Appropriations Act, Summary of the dispute to date at Feb. 24, 2010, http://www.wto.org/English/tratop_e/dispu_e/cases_e/ds176_e.htm (last visited on May 27, 2011).
12. See, e.g., Costco Wholesale Corp. v. Omega, S.A., 131 S. Ct. 565 (2010) (affirming, in a 4-4 decision, the Ninth Circuit opinion that the first sale doctrine does not provide an exception to a copyright claim for parallel imported goods); Exhaustion and First Sale in IP, Conference held at Santa Clara Law School on Nov. 5, 2010, http://law.scu.edu/hightech/first-sale-conference.cfm.
13. See Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 Notre Dame L.Rev. 397 (1990); Rochelle Cooper Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 Colum. VLA J.L. & Arts 123 (1996).