Possessing Trademarks: Can Blackstone or Locke Apply to Fast Food, Grocery Stores, and Virtual Sex Toys?

I. INTRODUCTION II. MCCURRY RESTAURANT V. MCDONALD'S CORP. AND GRUPO GIGANTE SA DE CV V. DALLO & CO.: TOWARD TREATING TRADEMARK AS REAL PROPERTY A. McCurry Restaurant v. McDonald's Corp. and the Problems with Trademark as Tort B. Grupo Gigante SA De CV v. Dallo & Co. III. LOCKE FOR REALITY AND BLACKSTONE FOR UTOPIA A. Locke--Labor Theory B. Blackstone's Clear-Act Principle C. Virtual Property--Second Life Offers a Second Chance for Blackstone IV. CONCLUSION I. INTRODUCTION Modern developments in technology and business have made the world a place where people are more connected and businesses are more competitive than ever. (1) An individual's ability to interact and do business with almost any entity around the globe has made the modern commercial world a flat plane where businesses and people are easily able to compete among each other. (2) As the global economy expands, trademark becomes more important in the commercialized world because brands are crossing borders to new markets and people are crossing borders to find new brands more than ever. Despite these evolving commercial interactions, trademark laws remain restrained by the territoriality principle. (3) The territoriality principle holds that an entity must undertake the appropriate means to gain trademark protection within a jurisdiction for the jurisdiction to offer its trademark protections. (4) In other words, "[t]he territoriality principles requires the use to be in the United States" for the mark to garner United States' trademark protections. (5) Although countries outside of the united States abide by the principle of territoriality, most other countries rely on registration rather than use to secure trademark rights. (6) The famous marks doctrine provides an exception in most countries. Article 6bis of the Paris Convention and Article 16.2 of the Trade Related Aspects of Intellectual Property Rights ("TRIPS") Agreement protect well-known marks not registered or used in a country where protection is sought. (7) Currently, United States federal courts are split as to whether the famous marks doctrine can protect foreign marks under the Lanham Act. (8) Most courts hold that the Paris Convention is not self-executing (9) and courts uniformly hold the TRIPS Agreement is not self-executing. (10) In particular, it appears that federal courts are reluctant to recognize Article 16.2 of TRIPS as applying to the United States. (11) Numerous authors have addressed whether a flat world is best suited to stringently adhere to the territoriality principle. In the United States, some authors argue for Congress to adopt legislation dropping the territoriality principle or at least recognizing exceptions to it. (12) Other authors argue for courts to take action and adopt exceptions to the territoriality principle on public policy grounds. (13) With these arguments in mind, intellectual property is confronting difficult problems in determining who possesses a trademark that is concurrently used by separate entities. While the battle over territoriality looms, a rising discussion in intellectual property law is taking place that addresses whether intellectual property should be legally analyzed as real property. (14) For example, Henry Smith argues that "intellectual property's close relationship to property stems from the role that information costs play in the delineation and enforcement of rights." (15) Additionally, Richard Epstein applies rules of acquisition, exclusion, and duration of property to intellectual property. (16) Sheldon Halpern acknowledges the movement toward treating trademarks as property but argues that the implications strongly stand in disfavor of this conclusion. (17) Two controversial trademark cases add to this discussion and demonstrate that at least famous trademarks should be examined as property. …