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.
Translating Trademarks: Towards the Equal Treatment of Foreign- Language Marks
................................................................................................ ii DEDICATION ............................................................................................... iii ACKNOWLEDGEMENTS ................................................................................ iv TABLE OF CONTENTS .................................................................................... v INTRODUCTION ........................................................................................... 1 CHAPTER 1: ADMINISTRATIVE PROBLEM ........................................................ 7 1.1 The Problem of Classifying Foreign-Language Marks that are not Romanized ............ 7 1.2 The Problem is Widespread in Canada .......................................................... 12 1.3 The Problem is Widespread Internationally .................................................... 16 CHAPTER 2: ADMINISTRATIVE SOLUTION ...................................................... 20 2.1 The Solution of Transcribing Foreign-Language Marks that are not Romanized ......... 20 2.2 The Solution as Illustrated by the Foreign-Language Marks for COCA-COLA .......... 21 CHAPTER 3: ADMINISTRATIVE ALTERNATIVES .............................................. 29 3.1 Classify as Design Marks Because not in an Official Language ............................ 29
The Bastille: A History of a Symbol of Despotism and Freedom
This book is both an analysis of the Bastille as cultural paradigm and a case study on the history of French political culture. It examines in particular the storming and subsequent fall of the Bastille in Paris on July 14, 1789 and how it came to represent the cornerstone of the French Revolution, becoming a symbol of the repression of the Old Regime. Lusebrink and Reichardt use this semiotic reading of the Bastille to reveal how historical symbols are generated; what these symbols’ functions are in the collective memory of societies; and how they are used by social, political, and ideological groups.

To facilitate the symbolic nature of the investigation, this analysis of the evolving signification of the Bastille moves from the French Revolution to the nineteenth century to contemporary history. The narrative also shifts from France to other cultural arenas, like the modern European colonial sphere, where the overthrow of the Bastille acquired radical new signification in the decolonization period of the 1940s and 1950s. The Bastille demonstrates the potency of the interdisciplinary historical research that has characterized the end of this century, combining quantitative and qualitative approaches, and taking its methodological tools from history, sociology, linguistics, and cultural and literary studies.