Trademarks have long suffered from an "ugly stepsister" status in the realm of intellectual property. Quasi-market regulation tool, quasi-investment property; trademark's historical role as both consumer-information signifier and producer-investment asset has led to increasingly confusing dichotomous treatment under the Lanham Act. The potentially borderless markets of cyberspace, with their new marketing techniques and new competitive spaces, have only heightened this confusion. Stumbling attempts to extend protection for marks under the Lanham Act beyond traditional notions of trademark use and consumer confusion to encompass the investment protection side of trademarks, such as the development of federal dilution and anti-cybersquatting acts, only serve to twist trademark law into unnecessary and ultimately useless contortions. Instead of ignoring the dichotomous nature of trademarks, it is time to "reboot" the Lanham Act to recognize that the dual role of trademarks cannot be adequately protected by a legal regime that ignores such dichotomies. In such new, competitive spaces on the Internet as domain names, keywords, pop-up advertisements, and metatags, traditional notions of trademark use and consumer confusion have little relevance. It is time to acknowledge the evolved nature of trademarks as both traditional reputation-based source designators and nontraditional information assets, and revise the law to reflect the different protection norms required for these two different types of "marks."
Doris Estelle Long, Rebooting Trademarks for the Twenty-First Century, 49 U. Louisville L. Rev. 517 (2011).