Private Law Theory

Abstract:
This Article explores what is termed the ‘Poirean Perspective’, which is an examination of Professor Marc Poirier’s seminal work in the relationship of property theory to the formation of social identity. The Poirean Perspective offers three key insights on the relationship of property and intellectual property law to conflicts over social identity. First, the Poirean Perspective suggests how theoretical conceptions of community in property theory need to capture how different theoretical and practical contingencies impact doctrinal formation in property law. Second, the Poirean Perspective suggests that legal and social conflict over property rights in group identity may ripen into Kulturkampf, given the disruptions in social status such conflicts generate. Finally, the Poirean Perspective explores how a type of group-identity in trademarks, called community brands, is likely to lead to Kulturkampf controversies in intellectual property law. This Article concludes by applying the Poirean Perspective to the current controversy over racially stigmatized trademarks such as the Washington Redskins.

Murray, Kali  Trademark Law in the Time of Kulturkampf: The Poirean Perspective, Seton Hall Law Review volume 47 : issue 3, Article 3.

First posted 2017-05-03 11:58:30