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Copyright (c) 2008 Washington & Lee University School of Law
Washington & Lee Law Review

ARTICLE: Trademark Extortion: The End of Trademark Law 1

Spring, 2008

Washington & Lee Law Review

65 Wash & Lee L. Rev. 585


Kenneth L. Port*


I. Introduction

The federal trademark law of the United States, the Lanham Act, 2 is now sixty years old. Commentators often describe it as "an extraordinary success." 3 The most famous trademarks, such as Coca Cola or Microsoft, are now valued at over $ 70 billion each. 4 However, what data do these commentators rely upon when they say the Lanham Act is an extraordinary success? Who benefits by this "success"?

On January 29, 2007, the New York Times ran a front-page article indicating that Levi Strauss & Co. was using trademark litigation to secure market share, even while the Levi's blue jeans continued to tumble in popularity. 5 For people knowledgeable about trademark law and practice, what makes this newspaper article noteworthy is not that Levi's is engaged in such conduct but that this notion has finally made it to the popular press. All trademark holders 6 are encouraged to engage in this conduct. That is, virtually all trademark holders use trademark litigation to secure market share by suing competitors and thereby increasing the competitor's cost of market entrance or market continuation. 7

This is not an exceptional thesis statement for people knowledgeable about trademark law and policy. However, documentation of this fact has been sparse. This Article documents this reality.

Of course, trademark holders must police their trademarks or suffer the fate of a court subsequently finding that trademark holders acquiesced to infringing uses or that the mark now lacks distinctiveness. 8 Therefore, when truly ...
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