Note:
Peter E. Mims, Promotional Goods and the Functionality Doctrine: An Economic Model of Trademarks, 63 Texas L. Rev. 639 (1984).
 

Abstract:
This note focuses upon the trademark litigation created by the “promotional goods” phenomenon. The lucrative sale of typical promotional goods, such as t-shirts, stickers, etc. emblazoned with popular institutional emblems and trademarks spawned considerable litigation when competing enterprises attempted to market their own copies. The institutional trademark owners bringing suit to prevent the practice of competing marketing of promotional goods brought most of their cases under the Federal Lanham Act, which bases their claims on the theory that competing uses of promotional goods creates the likelihood of consumer confusion. In addition, the trademark owners also sought restitution under state restitutionary remedies, asserting that defendants had been unjustly enriched at the expense of the trademark owners. The author’s argues that this resort to two independent rationales for compensation had the unfortunate effect of complicating the understanding of the traditional economic basis of trademark law in promotional goods cases.