Austin, Graeme W. --- "Tolerating confusion about confusion: trademark policies and fair use" [2008] ELECD 175; in Dinwoodie, B. Graeme; Janis, D. Mark (eds), "Trademark Law and Theory" (Edward Elgar Publishing, 2008)

Book Title: Trademark Law and Theory

Editor(s): Dinwoodie, B. Graeme; Janis, D. Mark

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845426026

Section: Chapter 14

Section Title: Tolerating confusion about confusion: trademark policies and fair use

Author(s): Austin, Graeme W.

Number of pages: 36

Extract:

13 Protecting the common: delineating a public
domain in trade mark law
Jennifer Davis



I. Introduction
From the early twentieth century, the House of David (an unincorporated reli-
gious and business association) maintained a baseball team, which toured the
United States, "playing several hundred games a year," and earning a substan-
tial income. According to Judge Woolsey,1 the team played "a sound game of
baseball." However, the most "notable characteristic" of the team was that its
players wore beards and had "House of David" printed across their uniforms.
In 1929, an individual named Murphy also formed a baseball team whose
players wore beards and whose uniforms carried the words, "House of David."
It was Murphy's strategy to book games for his teams in towns a few days
before those dates set for the original House of David, and in so doing accord-
ing to Judge Woolsey, "diluted the neighborhood's interest in seeing a bearded
baseball team play ball." Furthermore, the House of David claimed that
Murphy's team played an "inferior game of baseball," so injuring the House
of David's reputation and, as a result, its gate receipts. The House of David
sued for unfair competition.2 It was successful. The use of the plaintiff's name
and appearance together with Murphy's stratagem of booking in his team
ahead of the plaintiff established mens rea. However the court made a partic-
ular point about the beards. "From time immemorial," the judge stated,

The wearing of ...