The Suppressed Misappropriation Origins of Trademark Antidilution Law: The Landgericht Elberfeld's Odol Opinion and Frank Schechter's The Rational Basis of Trademark Protection
Frank Schechter’s 1927 article "The Rational Basis of Trademark Protection", which remains the most cited law review article ever written on trademark law, is generally recognized as the origin of the concept of trademark dilution. Yet as is less well recognized, Schechter’s discussion of trademark dilution in "Rational Basis" relied heavily, though cagily, on the true origin of the concept: the 1924 Odol opinion of the German Landgericht Elberfeld. "Rational Basis" quotes extensively from the Odol opinion and borrows much of the opinion’s argument and terminology. Yet Schechter suppressed and apparently deliberately deleted from his quotation of the opinion its central holding, that "[i]t is opposed to good morals to appropriate thus the fruits of another’s labor in the consciousness that that other will or may thereby be damaged." This brief essay, a chapter in the forthcoming "Intellectual Property at the Edge: The Contested Contours of IP" (Rochelle Cooper Dreyfuss and Jane C. Ginsburg eds. 2013), argues that Schechter deliberately sought in Rational Basis to obscure the true nature of the Odol case and of antidilution protection, and that even a century later, his effort at obfuscation remains more or less a success, at least in the United States. What Schechter sought to obscure in "Rational Basis" is that the Odol case was not, strictly speaking, a trademark case. Rather, it was a misappropriation case that happened to involve a trademark. Schechter sought to suppress this basic truth — that the concept of trademark dilution is essentially a misappropriation concept — in order to sell his proposed doctrinal reforms to an American audience altogether suspicious of misappropriation doctrine and increasingly under the sway of American Legal Realism. To do so required a great deal of finesse, or to but it more bluntly, of dissembling, and "Rational Basis" is full of it. Due both to its frequent misdirection and ambiguity and to its emphatic suppression of any suggestion that trademark dilution is a form of misappropriation, "Rational Basis" has remained an altogether open text. Concepts like "blurring" and "tarnishment" have rushed in to fill the void left in the absence of misappropriation. Even now, in the face of ever more scholarly and judicial commentary recognizing that dilution is essentially a form of "free-riding," and likely one that typically inflicts no substantial harm on the misappropriated mark, the obfuscatory nature of Schechter’s text enables the concept of dilution to survive — and thrive — behind a fog of indeterminacy.
Schechter's Ideas in Historical Context and Dilution's Rocky Road
Dilution is one of the great mysteries of trademark law. Ever since Frank Schechter first proposed the theory in his famous 1927 Harvard Law Review article, The Rational Basis of Trademark Protection, judges have had trouble understanding it and scholars have had difficulty justifying it. Still, dilution manages to hang on. Just when it seems that the theory might wither away, it gains new life and cycles through another period of ascendancy and then decline. The adoption of the Trademark Dilution Revision Act in October 2006 completes the latest cycle, reinvigorating Section 43(c) just when restrictive judicial interpretations threatened its viability. This Article traces the history of dilution law back to its origins in Schechter's 1927 article. It focuses on two stages: (1) Schechter's original 1927 proposal and its reception, and (2) the adoption of state anti-dilution statutes starting in the late 1940s. The Article challenges the generally accepted account of these events and situates Schechter's ideas in a richer economic, jurisprudential, and doctrinal context. Schechter was not a formalist, nor did he advocate for broad property rights in marks or rely principally on Lockean labor-desert or anti-free-riding arguments, as some have argued. Schechter was a legal realist. He believed that dilution was the real reason to protect marks because it was the reason that fit the way marks actually functioned in the marketplace, and he urged judges to acknowledge this fact openly because doing so would produce better decisions. Dilution never made any serious headway between 1927 and the early 1940s not because Schechter's contemporaries rejected the idea in theory, as some have assumed, but rather because they saw a strategic advantage to using broad confusion theories to expand trademark protection. When states began adopting anti-dilution statutes in the late 1940s, two developments played an important role. First, dilution found a strong and aggressive advocate in the person of Rudolf Callmann, and second, political factors favored action on the state level.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.