November 2010 Vol. 109 No. 2 THE REVIEW
ARTICLES

Owning Mark(et)s

Mark A. Lemley & Mark P. McKenna

Trademark owners regularly rely on claims that the defendant is "free riding" on their mark by making money using that mark, money the trademark owners say should belong to them. We analyze those free-riding claims and find them wanting. The empirical data shows that defendants in unrelated markets can benefit from using a well-known mark, but that neither mark owners nor consumers suffer any injury from that use. A legal claim that a defendant is unjustly benefiting by using a plaintiff's mark is hollow unless it is accompanied by a theory of why that benefit should rightly belong to the plaintiff. And unlike real property, or even other types of intellectual property, trademark law has no such theory. The result is that free-riding claims fall back on empty circularity. Yet these arguments are-explicitly or implicitly-behind the most problematic expansions of trademark law in recent years. We suggest that trademark law needs a theory of trademark injury that distinguishes harm to legitimate interests the law should protect from a mere desire to capture a benefit enjoyed by another.

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The Illusory Right to Abandon

Eduardo M. Peñalver
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NOTES

Don't Answer the Door: Montejo v. Louisiana Relaxes Police Restrictions for Questioning Non-Custodial Defendants

Emily Bretz

In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a right to counsel at all critical stages in his prosecution, it is essential to impose higher waiver standards for represented defendants. Thus, this Note argues that state and lower courts should adopt a rule that would render invalid any waiver of right to counsel given in response to police-initiated questioning, regardless of whether the questioning occurred in a custodial or non-custodial environment, provided the defendant who waived the right had already been formally charged and invoked his right to an attorney.

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The Right Issue, the Wrong Branch: Arguments Against Adjudicating Climate Change Nuisance Claims

Matthew Edwin Miller
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