Derek: in a word, yes and yes. And, relatedly, because the very existence of a trademark is defined by subjective consumer understanding rather than objective events (like fixation in copyright), there is a habitual fact-intensiveness to trademark litigation. In copyright we can just assume for the sake of argument that IP rights might exist and cut directly to the fair use analysis (even if there are rights, it is a fair use…) TM cases don’t work that way, but they should.

Tim: I haven’t seen Dennis’ patent piece, but there may be some synergy. I’d say a lot of IP doctrine could use some simpler rules, whether they come from property law or other sources, where excess complexity has grown like kudzu over the initial good intentions of some substantively sensible rule.

It strikes me that TM’s fair use doctrine is less well-mapped than copyright’s doctrine, and I wonder if this is because we think of marks as “mechanical”: labels, helping consumers find products. If so, might we need to help re-conceptualize trademarks, or trademark theory, in order to arrive at a coherent notion of fair use?