Death of a Salesman's Doctrine : A Critical Look at Trademark Use

A trademark is a salesman. It does the work of its owner by wearing a smile, by presenting a good image, and in Willy Loman's words, by being well liked. It is, of course, the usual view that the death of the salesman, Willy Loman, was a suicide. Due to the assault upon the requirement of prior trademark use and the growth of a token use doctrine, what happened to Willy Loman has happened to the trademark use doctrine. In the end, it seemed too expensive and it was killed off—partially by its own hand, due to its own internal contradictions, and partially by trademark owners who had gained the favor of the Patent and Trademark Office. The death of a doctrine meant to protect the ordinary public, like the death of the tired and worn-down salesman, may actually be an advantage for established business firms; it is a tragedy only for the ordinary person that the doctrine, and the salesman, symbolized. What made Willy Loman's death possible was a world of moral ambiguity—the market economy—that functioned according to an illegitimate set of rules, but whose separateness preserved the apparent legitimacy of the rest of society. The death of trademark use was similarly due to a world of legal ambiguity—the administrative arena—whose rules are likewise illegitimate, but whose separateness helps preserve the legitimacy of the legal system. This Article traces the evolution and decline of the trademark use doctrine and examines the jurisprudential circumstances that led, perhaps inevitably, to its present moribund state.