January 24, 2018 at 6:33 pm #956Tomás Gómez-ArosteguiParticipant
Thanks again for all your hard work on this casebook.
Included below are mostly minor non-substantive suggestions, but there is one that is more meaty (the first). I’ll send more as they pop up.
pp 4-5: I’m not sure what to do about this bit, but Mark’s article (sorry Mark!) misdescribes the proceedings in the clothier’s case. First, the clothier’s case is from 1584 not 1618. It was only cited in Southern v. How in 1618. So I would not caption and describe the clothier’s case as Southern v. How (1618). John Baker believes the better caption for the clothier’s case is J.G. v. Samford (C.P. 1584), a conclusion he draws from manuscript excerpts of the record in Samford, and which I have no reason to question at this time. Second, Mark’s article quotes the Popham report of Southern v. How and doubts the accuracy of that report and notes that the Popham report is what most people later relied upon. Actually, the Popham report’s discussion of what happened in the clothier’s case, namely who the plaintiff was, is more accurate than the other reports. It is the Croke report that gets it most wrong by stating that the plaintiff in the clothier’s case was the purchaser of the cloth. Rather, it is clear from manuscripts directly related to the Samford case, and which were published by John Baker in 1986, that the plaintiff was the mark holder and not the purchaser of the cloth. What is actually unclear about Samford is the holding. The four judges were split on whether an action was maintainable. Lastly, and much less important of course, the citations to the sources in footnote 10 are off in various respects. In short, Mark’s narrative was led astray in part by Schechter’s historical work, which is out of date.
If it were me, I would delete the discussion of Southern v How from the excerpt in its entirety, and then delete a few lines from the discussion of Blanchard v. Hill that refer back to Southern v. How.
Mark, if you see this, maybe you want to chime in.
p 5: Also in the excerpt of Mark’s article, I think a line should be added stating how the court ruled in Blanchard v Hill. Maybe just bracket in the following:
…the court of equity’s 1742 decision in Blanchard v. Hill[, where Lord Chancellor Hardwicke denied a motion for a preliminary injunction.]
p 22: proved to especially influential -> proved to be especially influential
p 11:  There propositions -> These propositions
p 12 fn 4: Change (2 Cir. 1970) -> (2d Cir. 1970).
p 98: In reading through the Samara Bros. -> In reading through Samara Bros.
p 116, in the citation to the Seabrook case: change (CPPA 1977) -> (CCPA 1977)
p 117 bottom: The Gilson treatise remain loyal -> remains loyal
January 24, 2018 at 10:00 pm #957Barton BeebeKeymaster
Thanks very much for all of these comments, which I’ve duly noted for Version 5.0 (to come out in June/July).
As for the history section more generally, I will very likely drop out the excerpt from Mark’s article and replace it with an excerpt from the Restatement (Third), Section 9, which sets out the basic history in much less detail (and regrettably with much less color) and does not explicitly refer to the early English or American case law. I liked a lot the discussion in Mark’s article of the cases because it brought out so many themes that would appear later in the course. But as first day introductory reading, I’ll admit that it is too detailed a history. (We do read the article in our advanced trademark seminar, however).
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