29
Apr/03

Branded For Life?


Worldcom changing its name back to MCI is only the most recent example of re-branding to avoid badwill associated with a trademark.  We will likely not see  ADELPHIA, GLOBAL CROSSING or ENRON used much in the future even if the businesses themselves continue.  Louis Tompos, a 3L, argues in a note in the Harvard Law Review that re-branding can cause the type of consumer confusion trademark law is supposed to guard against.  He argues that people believe “If I had known it was really ValuJet, I would not have chosen AirTrans.”  He suggests that some sort of double-branding period be mandated, similar to the Prunes/Dried Plum model.

Having read the abstract, I wonder if existing law isn’t sufficient.  A new name (or more to the point, a denial of connection to the old name) may or may not be a false statement of origin actionable under Section 43(a) of the Lanham Act.   Usually defendant says that they are someone they are not, here they say that they are not who they are.

‘Badwill,’ 116 Harv. L. Rev. 1845 (available on Westlaw).

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