TRADE MARK OWNFRINGEMENT

Trade mark owners have increasingly been acting similarly to those they accuse of infringement or dilution of their marks. They are acting as "ownfringers". They have been engaging in previously unheard-of competitor collaborations, collaborations with businesses in distant spaces, and self-parody. These trends typify how trade mark owners are increasingly behaving like the third parties they pursue for infringement. How should trade mark law think about these new, prevalent behaviours by mark owners? Perhaps it is just par for the course because mark owners have the right to use their marks in commerce in ways that would constitute infringement if done by third parties. Even so, by engaging in ownfringement, trade mark owners are potentially altering the balance or calculus of a number of fundamental aspects of trade mark doctrine. I explore three important doctrinal impacts of ownfringement: on likelihood of consumer confusion, trade mark distinctiveness and self-dilution, and the parody defence.