Johnson's paper, entitled "The Waning Consumer Protection Rationale of Trademark Law: Over-Protective Courts and the Path to Stifling Post-Sale Consumer Use," was the 2011 winner in the student category and will be published in the Trademark Reporter, INTA's legal journal. The award includes a cash prize of $2,000 and Stephen P. Ladas’ three-volume treatise, Patents, Trademarks, and Related Rights (Harvard University Press, 1975). Johnson will accept his award at the annual INTA Gala on May 14, 2011 in San Francisco.
In his paper, Johnson proposes the addition of a third-party intermediary to trademark litigation–similar to a court-appointed expert–to assist courts in their norm-creation role. One of the principal functions of a court in a trademark dispute is to protect consumer interests, shaping consumer expectations in accordance with those interests. Many commentators have criticized modern courts for drifting from this goal of consumer protection. Johnson theorizes that, contrary to these commentators’ assertions, courts have actually over-protected consumers from confusion through the expansion of various trademark doctrines, largely due to the supposed consumer confusion that has corresponded with the proliferation of product placement in popular media. He asserts that the subjective “reasonable consumer” standard in trademark law’s confusion doctrine–combined with changing consumer executions and the courts’ hasty validation of those expectations–has harmed consumer interests and prevented consumers from receiving the full benefit of the post-sale use of trademarks in which they have invested. Thus, rather than shaping consumer expectations through trademark litigation in a way that is beneficial to consumer interests, Johnson believes that courts have simply reflected social norms to the detriment of consumer interests.
The Ladas Memorial Award was established in memory of distinguished trademark law practitioner and author Stephen P. Ladas and is funded by Ladas & Parry, the law firm he cofounded. Each year, awards are presented to one law student and one law professor whose papers on trademark law or matters that directly relate to or affect trademarks are judged to make the most significant contribution to scholarship in the area that year.