The Rise of the Conservative Non-Trademark Use
posted by James Grimmelmann
Steven Teles’s The Rise of the Conservative Legal Movement features a clever cover design. It shows a white man in a suit, wearing a maroon Federalist Society tie, and holding a book instantly recognizeable as a legal text, whose title is Teles’s subtitle: “The Battle for Control of the Law.”
So here’s the lazy Saturday question. The book is instantly recognizeable as a legal text because it uses the instantly-recognizeable trade dress of the Aspsn series of casebooks. It has the same red cover, the same pair of black boxes, the same five golden stripes (one above the boxes, five between, and four below), and the same golden lettering. The typeface and layout of the text are admittedly different: Teles’s book has a sans-serif, which any self-respecting conservative would disdain as a modernist liberal fad. Also, the upper box, where the authors’ names go on an Aspen casebook, is empty. The Aspen/WoltersKluwer names and logos don’t appear in the image. Does or should Aspen have any right to object to the use of its trade dress in this manner?