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Trademark Exhaustion/First Sale

This lesson addresses the trademark doctrine of "exhaustion/first sale." The doctrine governs the trademark owner's continuing rights regarding authentic goods bearing the mark put into the marketplace. The lesson assumes familiarity with trademark's policy objectives, the basic "likelihood of confusion" test for infringement and "fair use," in particular nominative fair use and the problems associated with implied sponsorship. The lesson can be used (1) as an introductory exposure prior to a detailed class on the subject, (2) to reinforce understanding of basic concepts as discussed in class, or (3) as a stand-alone overview of the doctrine's core concerns and rules.

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