Saturday, November 12, 2005

More "sleights of hand" by law reviews?

Ten years ago, the Supreme Court in Qualitex cited a law review article I wrote: We do not see why courts could not apply those standards to a color, replicating, if necessary, lighting conditions under which a colored product is normally sold. See Ebert, Trademark Protection in Color: Do It By the Numbers!, 84 T. M. Rep. 379, 405 (1994).

The Supreme Court cite does reflect my position, that you can do color trademarks "by the numbers" and that variations in light source can be taken into account in doing color trademarks "by the numbers."

I was a bit surprised to see an October 2005 law review reach a somewhat disparate conclusion:

For a thorough discussion of the variances in human perception of
color depending on the environment, and the difficulty of taking these
variances into account in trademark infringement actions, see Lawrence B. Ebert, Trademark Protection in Color: Do It by the Numbers!, 84 Trademark Rep. 379, 405-06 (1994).
[27 Cardozo L. Rev. 457 (Oct. 2005)]

This isn't perhaps as bad as Lemley and Moore saying that Clarke assumed that all continuations resulted in a patent (when Clarke said no such thing), but it is perhaps not an accurate assessment of what I was saying about color trademarks.


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