off as ones own. Today, corporations routinely litigate or threaten to litigate trademark cases that are seemingly devoid of any likelihood of consumer confusion. Particularly, in connection with entertainment-related product such as film and music, the cases seem to come from the theatre of the absurd and reflect that trademark law is being used in an abusive manner out of sync with any traditional trademark rationale Some examples from recent years illustrate this dynamic. The manufacturer of SPAM sandwich meat brought trademark infringement charges against a motion picture production company for its depiction of a Muppet character known as"Spam"in the film" Muppets Treasure Island". Owners to a film clip of old footage of the"Three Stooges"upon which copyright protection had expired sued a filmmaker for 30 seconds worth of use of the clip in the film "The Long Kiss Goodnight?7 A sneaker company sued a filmmaker for displaying its sneakers in a film displeased with a characters monologue, played by Cuba Gooding Jr, ending in"F Reebok? " in the film"Jerry Maguire". The use of the phrase"Are You Ready to Rumble? by a band in a song led to a suit of trademark infringement by the owner" of s This conduct was known at common law as"palming off"or passing off, and as a British jurist asserted in 1842, a man [sic] is not to sell his own goods under the pretense that they are the goods of another man See DAVID LANGe, et al, INTELLECTUAL PROPERTY: CASES AND MATERIALS 88-89(1998) ( detailing common law trademark approaches). For a perceptive history of the development of trademark law, see also Kenneth J. Vandevelde, The New Property of the Nineteenth Century Development of the Modern Concept of Property, 29 BUFF. L REV. 325, 341(1980)(noting that early common law provided protection for trademarks only upon establishment of fraud) Hormel Foods Corp. v. Jim Henson Productions, Inc. 73 F 3d 497(2Cir. 1996) (rejecting Hormel's trademark and dilution claims) Comedy Ill Productions, Inc. v. New Line Cinema, 200 F 3d 593(9 Cir. 1999)(rejecting plaintiffs trademark infringement claims) See Complaint, Reebok Int'I Ltd. v. Tri-Star Pictures, Inc, no 96-8982 SVW(C D. Cal. 1996), available onwww.courttv.com/legaldocs/business/reebok/html.ReebokwasparticularlydispleasedwithTri-star because it believed the parties had contracted to include a trailer/commercial at the end of the film that would praise the virtues of Reebok. The released film did not include the trailer2 off as one’s own.5 Today, corporations routinely litigate or threaten to litigate trademark cases that are seemingly devoid of any likelihood of consumer confusion. Particularly, in connection with entertainment-related product such as film and music, the cases seem to come from the theatre of the absurd, and reflect that trademark law is being used in an abusive manner out of sync with any traditional trademark rationale. Some examples from recent years illustrate this dynamic. The manufacturer of “SPAM” sandwich meat brought trademark infringement charges against a motion picture production company for its depiction of a Muppet character known as “Sp’am” in the film “Muppet’s Treasure Island”.6 Owners to a film clip of old footage of the “Three Stooges” upon which copyright protection had expired sued a filmmaker for 30 seconds worth of use of the clip in the film “The Long Kiss Goodnight”.7 A sneaker company sued a filmmaker for displaying its sneakers in a film, displeased with a character’s monologue, played by Cuba Gooding Jr., ending in “F…. Reebok” in the film “Jerry Maguire”.8 The use of the phrase “Are You Ready to Rumble?” by a band in a song led to a suit of trademark infringement by the “owner” of 5 This conduct was known at common law as “palming off” or passing off, and as a British jurist asserted in 1842, “a man [sic] is not to sell his own goods under the pretense that they are the goods of another man.” See DAVID LANGE, et al, INTELLECTUAL PROPERTY: CASES AND MATERIALS 88-89 (1998) (detailing common law trademark approaches). For a perceptive history of the development of trademark law, see also Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325, 341 (1980)(noting that early common law provided protection for trademarks only upon establishment of fraud). 6 Hormel Foods Corp. v. Jim Henson Productions, Inc. 73 F.3d 497 (2nd Cir. 1996)(rejecting Hormel’s trademark and dilution claims). 7 Comedy III Productions, Inc. v. New Line Cinema, 200 F.3d 593 (9th Cir. 1999)(rejecting plaintiff’s trademark infringement claims). 8 See Complaint, Reebok Int’l Ltd. v. Tri-Star Pictures, Inc., no. 96-8982 SVW (C.D. Cal. 1996), available on www.courttv.com/legaldocs/business/reebok/html. Reebok was particularly displeased with Tri-Star because it believed the parties had contracted to include a trailer/commercial at the end of the film that would praise the virtues of Reebok. The released film did not include the trailer