Document Type



Intellectual Property Law


In recent years, the importance of intellectual property law both as an academic discipline and as a real world phenomenon has risen meteorically. Oddly, however, there exists a striking misfit between the academic theory of intellectual property and its use in the real world. Economists and legal scholars tend to treat each of the constituent fields of intellectual property as discrete and insular. Worse yet, the same insularity has pervaded the United States Supreme Court's intellectual property jurisprudence. Most recently, in TrafFix Devices v. Marketing Displays, Justice Kennedy opined that "[trademark law] does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity. In this view, patents and copyrights offer limited protection to novel processes or intellectual products, while trademark law protects goodwill. Those who actually use intellectual property protection, however, appreciate that its various modalities can be combined to yield important synergies: Patents can help create goodwill, and trademarks can be used to appropriate the gains from innovation.

The conventional view has acknowledged the possibility of employing alternative modes of intellectual property to protect a given business asset-most notably, the availability of patent or copyright protection for software. But it has largely ignored-and occasionally been hostile to-the possibility of combining different modes of intellectual property to reinforce one another. Much like the blind persons in the elephant tale, existing analysis has failed to discern the important synergies that flow from combining different modes of protection. In this Article, we will seek to redress this omission by exploring the consequences of combining various modes of intellectual property protection. We will focus on the possibility of combining patent and trademark protection by leveraging patents through trademarks, but we will also discuss the synergies between trademarks and both trade secrets and copyrights.