The Rise of the Conservative Non-Trademark Use

24791984.JPGSteven Teles’s The Rise of the Conservative Legal Movement features a clever cover design. It shows a white man in a suit, wearing a maroon Federalist Society tie, and holding a book instantly recognizeable as a legal text, whose title is Teles’s subtitle: “The Battle for Control of the Law.”

So here’s the lazy Saturday question. The book is instantly recognizeable as a legal text because it uses the instantly-recognizeable trade dress of the Aspsn series of casebooks. It has the same red cover, the same pair of black boxes, the same five golden stripes (one above the boxes, five between, and four below), and the same golden lettering. The typeface and layout of the text are admittedly different: Teles’s book has a sans-serif, which any self-respecting conservative would disdain as a modernist liberal fad. Also, the upper box, where the authors’ names go on an Aspen casebook, is empty. The Aspen/WoltersKluwer names and logos don’t appear in the image. Does or should Aspen have any right to object to the use of its trade dress in this manner?

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3 Responses

  1. Timon says:

    Would this maybe overlap with the “look and feel” copyright cases of the late 80’s early 90’s? The Lotus case got it basically right — and of course Aspen may “object to the use of its trade dress in this manner”, but it should do so on a blog, not in court.

  2. Larry Sheldon says:

    “Does or should Aspen have any right to object…”


    Hell, yes. Do they have a right to collect–not so clear.

    Near as I can see, watching some of the spam suites, there is nothing so trivial, nor so far fetched that somebody can’t object.

    And have a reasonable expectation of collecting.

  3. greglas says:

    No, I don’t think so. I can’t see the LOC and seems like fair use under the TDRA. But note that this is an unconsidered guess, not a legal opinion. 🙂

    Cf. this. Which, btw, was a final exam question in my TM class.