Saturday, January 19, 2008

Recent reading

Richard J. Leighton, Literal Falsity by Necessary Implication: Presuming Deception Without Evidence in Lanham Act False Advertising Cases, 97 Trademark Reporter 1286 (2007). A useful summary of falsity by necessary implication doctrine in the circuits that have endorsed it, along with some discussion of the rationale for the doctrine and its relationship to its mirror image, puffery. Puffery is used to preclude evidence of actual deception; falsity by necessary implication to obviate the need for that evidence. Both are ways of avoiding the surveyor’s black arts.

Briefly noted: Mark H. Anania, Note, The Plight of Small Business Trademark Holders, 59 Rutgers L. Rev. 565 (2007). Argues that fairness to small businesses requires expanding dilution protection to everyone under state law. I couldn’t disagree more, of course, but I think it’s a logical consequence of modern dilution rationales.

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