Fair Trade-mark: Proposing an Affirmative Duty on Licensors to Enforce Their Corporate Social Responsibility Codes
Dorothy L. Newman*
Note

The full text of this Note may be found here.

29 Fordham Intell. Prop. Media &Ent. L.J. 729 (2019).

Note by Dorothy L. Newman

ABSTRACT

[M]

odern consumers are increasingly interested in seeing the brands they love commit to corporate social responsibility (CSR), including fair labor practices and environmental sustainability throughout their supply chains. Many corporations capitalize on this demand through branding strategies that highlight their commitment to CSR. Branding of CSR can include publishing codes of conduct on corporate websites, incorporating a value of doing good while doing well in print and video advertisements, or even publicly partnering with nonprofit organizations. The Lanham Act, the primary federal trademark statute in the United States, articulates federal laws pertaining to branding and advertising, and is rooted in a significant policy interest to keep consumers informed and to prevent consumer deception. Two doctrines of law that stem from the Lanham Act substantiate this policy consideration: the naked licensing doctrine, which imposes an affirmative duty on trademark licensors to supervise their licensees’ quality control standards, and false advertising law, which prevents corporations from espousing false or misleading advertising in connection with their trademarks or brands. An analysis of each of these bodies of law, along with the overall policy underpinnings of the Lanham Act, poses the concern that corporations who incorporate CSR into their branding strategies run the risk of deceiving consumers if in reality they do not supervise their supply chain sufficiently to ensure the truth of their public CSR statements. This Note analyzes the naked licensing doctrine and false advertising laws, and proposes an affirmative duty on corporations to monitor and enforce their CSR codes, in compliance with the Lanham Act.

*Fordham University School of Law, J.D. Candidate, 2020; University of Pennsylvania, M.S. & B.A., 2017. I would like to thank Professor James Brudney for his invaluable guidance throughout the process of developing this Note, and Professor Janet Freilich for her crucial advice and thoughtful feedback. Thank you to Senior Research & Writing Editor Sean Corrado and the entire staff and editorial board of the Fordham IPLJ. Finally, I am grateful to my parents and family for their endless love and support.