David E. Armendariz
90 Texas L. Rev. 1259
Mr. David E. Armendariz addresses the phenomenon of trademark owners asserting their trademark rights against what he calls fans, emulators, and enthusiasts—groups that use the mark not to create a separate brand identity of their own but rather to show their support for or imitate the original brand owner. Armendariz argues that, while trademark owners have good reasons for asserting these rights, such enforcement actions yield no benefit and may in some cases cause harm. Armendariz’s solution to this phenomenon is a change in the incentives for trademark owners, in which owners would at least not be encouraged to pursue enforcement actions that benefit no one and may in fact be damaging. Armendariz proposes two methods of achieving this change in incentives: (1) ensuring that the doctrines of acquiescence and laches do not attach unless there is a risk of significant harm to the original owner’s interests, and (2) assessing the factors of confusion and dilution differently in enforcement actions against fans, emulators, and enthusiasts.