Trademark tacking allows a mark owner to adjust her mark without losing protection. The test for determining whether tacking is appropriate is whether the new mark is the legal equivalent of the old. This equivalency is measured by evaluating the continuing commercial impression created by the marks. A circuit split has developed over whether this test is a question of law or a question of fact. This Comment argues that the continuing commercial impression test is ill-suited to be measured as a question of law. Initially, this Comment focuses on how commercial impression is a fact-based inquiry and should be measured as such. This involves a discussion about the roles of the fact and law finders, a comparison to the likelihood of confusion analysis, as well as its treatment in court, and the complexities involved in determining consumer impression.
Megan Majcher Hartnett,
Judicial Speculation on Consumer Impression: The Pitfalls of Measuring Trademark Tacking as a Question of Law,
Cath. U. L. Rev.
Available at: http://scholarship.law.edu/lawreview/vol63/iss4/6