Defenders of Small Business?: A Perspective on the Supreme Court’s Recent Trademark Jurisprudence,

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30 William Mitchell Law Review 1705 (2004)


In this comment, I explore a possible explanation for the Supreme Court's renewed interest in trademark law or, even if it is not, one I hope all courts consider when they decide trademark cases: the impact that the improper application of trademark law has on small and fledgling businesses.

If the United States is truly a country that values free competition and wants to encourage the development of new businesses-many with new and innovative ideas-it must reduce the barriers to entry that an expansive view of trademark law erects. While many businesses innovate and create works of authorship and, therefore, should be aware of the potential benefits of copyright and patent law, all businesses need a name and identity. Thus, of the three intellectual property doctrines (four including trade secret law), trademark law is the one that is most likely to immediately and directly affect small businesses and fledgling entrepreneurs.