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Service Trade Dress: Demystifying the \u3ci\u3eTertium Quid\u3c/i\u3e
No full textTrademarks are often brand names or logos. Yet other marks involve the overall appearance of a product or business — a concept called “trade dress.” Courts and scholars have long struggled with how to determine whether trade dress is distinctive enough to function as a legally protectable trademark. In attempting to clarify this murky area, Justice Scalia articulated three types of trade dress in Wal-Mart Stores, Inc. v. Samara Brothers, Inc. These include (i) product packaging (e.g., a candy wrapper) and (ii) product design (e.g., an iPhone’s unique shape). The trouble lies in understanding the third category — what Scalia referred to as (iii) “some tertium quid” (e.g., a restaurant’s décor). Under the Supreme Court’s framework, product packaging is eligible for instant protection based on inherent distinctiveness because its “very purpose” is to identify a brand. Product design, though, must first acquire market recognition (i.e., secondary meaning) to be protectable since it usually serves goals unrelated to brand identification. However, the undefined tertium quid is considered capable of instant protection because it is thought to be, as Scalia believed, “akin to product packaging.”
In challenging this prevailing perspective, this Article seeks to demystify tertium quid trade dress. Seldom used in a legal context, tertium quid is an obscure Latin term meaning “third thing” that is associated with the arcane practice of alchemy, where alchemists would mix two inputs to try and produce gold (the third thing). The esoteric tertium quid label conceals this category’s true nature as consisting of what this Article labels “service dress” — trade dress for intangible services rather than tangible products. In recognizing the product/service distinction, this Article looks to the field of service design for legal insights. The service design literature casts serious doubt on whether service dress should be eligible for trademark protection absent secondary meaning. This is because service design, like product design, is usually intended to serve purposes other than brand identification. Moreover, requiring secondary meaning for service dress protection would support fair competition, providing for reasonable limits on the commercial appropriation of both physical and digital environments
Tax and the Myth of the Family Farm
No full textWith income and wealth inequality at historically high levels, policymakers have looked to the tax system as a potential road to reform. Specifically, new taxes on wealth or inheritances could raise much-needed revenue and reduce intergenerational wealth disparities. Yet looming behind recent proposals to strengthen the progressivity of the tax system is the specter of taxing family farms out of existence.
In the minds of voters, the family farmer is a sympathetic taxpayer who is cash poor but holds valuable property. Federal taxes that are based upon property values (like a wealth tax or an estate tax), rather than on cash income, appear to pose a risk that the family farm would have to be sold to fund such a tax. Yet, there is no empirical evidence that any family farm has ever been sold in the United States to fund federal taxes. Further, recent proposals to enact progressive tax reforms go out of their way to exempt farms, making the risk of taxing the family farm out of existence virtually zero.
This Article proposes that the threat of taxing family farms out of existence is a myth, but one worth exploring. It is the first to offer a comprehensive account of the outsized role that family farms play in shaping tax policy. In the end, the story of taxing the family farm is not a story about farmers at all. Rather, the family farm reflects our collective unease with the idea of taxing “paper gains”—that is, taxing the value of assets before they are sold, such as through a wealth tax or an estate tax. Arguably, no one better represents the pitfalls of taxing paper gains than a farmer holding valuable land that has been appreciating for decades.
When viewed in this light, the family farm narrative is not just an interesting story; it also symbolizes a fundamental crossroads in U.S. tax policy. Voters express strong support for higher taxes on the wealthy yet do not appear to support specific tax policies (like a wealth tax) that would achieve more redistribution. Policymakers interested in reducing inequality must reckon with the fact that even the most progressive voters may resist taxes on anything but income. To that end, the Article concludes by offering concrete reform proposals that account for the myth of the family farm
A Shield for Schools, but No Relief for Students: The Problem with Statutory Immunity in \u3ci\u3eDieckhaus v. Board of Governors of University of North Carolina\u3c/i\u3e
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