Drinking the Kool-Aid

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

4 Responses

  1. Vladimir says:

    Actually, Tylenol *capsules* were the things that were poisoned. That’s why the company invented the *caplet* — a coated pill shaped like a capsule, but which couldn’t be opened. Which goes to show that even smart origins-meisters forget origins. And Homer nodded.

  2. Gerard Magliocca says:

    Whoops! Good catch.

  3. Chuck says:

    The people in Jonestown actually drank poisoned Flavor-aid, not Kool-aid. It was probably conflated with Kool-aid due to the latter’s greater visiblity with the public from advertizing (Hey, kool-aid man!)and then further muddied because of the Ken Kesey novel “The Electric Kool-aid Acid Test”

  4. Deven says:

    I’m not so sure that the reputation angle is not accepted. The association language in the act points to that idea. Dilution is related to the reputation idea too. Now I think you are saying that dilution and expanding trademark claims are not a good thing.

    Nonetheless when you say:

    “consumer confusion” test of trademark infringement but reach well beyond that rationale to protect brands from other commercial uses

    you seem to go away from colloquial, non-commercial uses such as the Kool-Aid, Craigslist, and Tylenol example (by Tylenol could be an example of positive image control given the move to pull all the bottles and develop seals for them too).

    I think that there is a difference between offering control over non-commercial expressive uses and the sort of reputation, commercial harm that seems to be objectionable to you. My article with Sandra Rierson, Confronting the Genericism Conundrum, goes through that distinction and the problems with allowing mark holders to make over broad claims about harm to the mark.