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Frank Schechter introduced the concept of trademark dilution to American readers in his 1927 Harvard Law Review article “The Rational Basis of Trademark Protection.”2 He concluded the article by noting that his formulation of the concept “is fortified by the doctrine that has developed within recent years in German law on this same point.”3 In waiting until the end of his article to refer to the German case law, Schechter effectively implied that dilution was a home-grown American idea – indeed, that it was Schechter’s own, original idea – and that the German courts just happened to have come up with a similar notion. In fact, Schechter appears to have taken the concept of trademark dilution and much of the rhetoric he used in describing it – including “selling power” and the very term “dilution” – from a single German trial court opinion, specifically, the opinion of the Elberfeld Landgericht in the 1924 Odol case.4 The enormous significance of the Odol opinion for American and global trademark law still remains unappreciated. In honor of Annette Kur’s path-breaking and decades-long work in forging mutual understanding between the European and American trademark law systems, presented here is the first full translation into English of the Odol opinion, trademark dilution’s “ur-case.”5
My hope is that Alan Audi's important and necessary intervention
represents a turning point in “cultural property argument.” In
Parts I and II of his critique, Audi expertly uses the tools of
“legal semiotics” to do exactly what those tools were designed
to do: demystify the language game of legal argument to reveal the
“irreducibly antinomal” and dialectical nature of its maxims
and countermaxims. Audi quite persuasively sets forth a disturbing vision
of a discourse that functions by its nature not so much to generate
meaning and normative force as to suppress them, all so that the status
quo remains undisturbed. Just as the fact that the English are unlikely to
give up the Elgin Marbles anytime soon “suggests a kind of idle or
recreational character to cultural property argument,” so too
Audi's critique. Indeed, stripped of its legal features, the field of
cultural property argument does look “rather barren.”
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