The Shifting Intersection Between Trademark and Antitrust Law

Bloomberg Law

22 Dec 2021

Thomas McCarthy, Jennifer Lee Taylor, Michael Miller, and Sabrina Larson authored an article for Bloomberg Law explaining antitrust principles that trademark practitioners should be aware of after a recent Second Circuit decision reaffirmed that agreements with a plausible trademark protection rationale and trademark enforcement efforts are presumptively procompetitive.

"In the 2007 joint report on Antitrust Enforcement and Intellectual Property Rights, the Department of Justice and the Federal Trade Commission noted that '[o]ver the past several decades, antitrust enforcers and the courts have come to recognize that intellectual property laws and antitrust laws share the same fundamental goals of enhancing consumer welfare and promoting innovation,'" the authors wrote. "The report's modern view conveyed that 'intellectual property and antitrust laws work in tandem to bring new and better technologies, products, and services to consumers at lower prices.' This was a significant shift from the earlier view that antitrust and intellectual property law goals were incompatible."

They added: "A trademark gives its owner a right to prevent confusion with a particular mark used in connection with specific goods or services. Trademark rights can help a trademark owner compete more effectively in the relevant antitrust product market, and those competitive benefits can accrue to the consumers in that antitrust product market. Restricting a competitor's ability to cause confusion by using another's trademark can be good for competition."

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