Sometimes a body of factually similar cases accretes over time and with little notice, particularly when courts do not announce unifying principles that identify the cases with each other. In trademark law, one such set of cases concerns historic sites where businesses are operated under concession from the site owners. The McCarthy treatise subsumes these cases under landlord-tenant disputes, but doing so tends to overlook the fame, importance, and draw of the landmark building or site in question.
In fact, trademark law is ill suited for situations where the consumer does not care about the provider of the services at a location as much as she cares about the actual physical location or building where the services are provided. This happens when the physical location or the building is itself the consumer’s “destination,” i.e., when the building, site, or place is a landmark. Often such landmarks are publicly owned and leased to private service providers, but they can be privately owned as well.
One could imagine a separate legal regime for names of landmarks and other aspects of our cultural heritage, but the proposal in this Article is more modest—and one that can be implemented by individual decision-makers, both trademark examiners at the United States Patent and Trademark Office (“USPTO”) and courts. The proposal is that in these “landmark trademark” cases, courts have tended to overlook the descriptive status of the building or site’s name. In fact, while the McCarthy treatise discusses towns and street names as candidates for being “primarily geographically descriptive” terms, it makes no mention of buildings or sites. A proper appreciation of the powerful descriptiveness of a landmark’s name may, in many of these cases, lead to a conclusion that there are no trademark rights at all, obviating the need to figure out who owns them.
