The Economics of Trademarks

1998

Abstract: This paper is the entry under" trademarks" in the New Palgrave Dictionary of Economics and the Law. It discusses the economic function of trademarks in conveying information to consumers, as well as the various distortions that may arise in the function of trademarks.

The last two decades have witnessed an expansion of trademark rights that has not been balanced by an equal development of exceptions and limitations. Positive law and judicial decisions have drifted from the core of classic trademark law following a shift in the economic functions and the value of trademarks. For the trademark protection system to retain its overall beneficial effects, an appropriate balance must be found between the interests of trademark proprietors, consumers, competitors and the public at large. It is the purpose of this work to analyze which existing limitations and flexibilities could further this goal and which aspects and deficiencies suggest that a development of a new limitations infrastructure would be beneficial.

A notion of trademark parodies, by its legal nature simultaneously belongs to two branches of law – an intellectual property law and a human rights law. Thus, it falls under umbrella of ongoing debate about relations between the aforementioned ones. A chosen area of the research – trademark law – narrows viewpoints to the specific perspectives. The question about parody in law has its roots in maternal meaning of parody as literary artistic comic and critical genre. On more deep level it should be percept as part of the society’s way right to comment on surrounding environment and criticize it. In case of trademark parody it concerns over dominating position of well- known and famous trademarks in nowadays reality. While studying intellectual property nature of parodies, the main research interest is about explore how notion of trademark parody fits the previous litigations on examinations whether “use” to be the one that will be defined as “likelihood of confusion” and“trademark dilution”. Having in mind example of US case law, that is much richer towards parodies, it is quite challenging to find the analogue in the European context. The freedom of expression argument of justifying trademark parodies is a progressive alternative that is following human rights approach. In truth, in case of being understood as part of existing doctrine of FOE, being “pure” parody, it will solve dispute without even going to IP numerous tests. Even if currently there is no case in ECHR on trademark parodies, one have to be insured that in instances of it, the Article 10 of European Convention will consider parodist as an “artist”. Therefore, the main aim of present research is to find out whether freedom of expression arguments may be more privilege way of seeing and justifying trademark parody than within traditional likelihood of confusion and dilution tests.

UCLA L. Rev., 2003

Current thinking about trademark law is dominated by economic analysis, which views the law as a system of rules designed to promote informational efficiencies. Yet the economic analysis has failed to explain, because it is unequipped to do so, a number of concepts of fundamental importance in the law, most notably the concepts of trademark "distinctiveness" and trademark "dilution." This Article proposes that a more robust understanding of trademark law may be achieved by viewing the law through the lens of semiotics, a systems-theoretical field of knowledge, of which structural linguistics forms a part, dedicated to the study of signs and sign-systems.

IDEA: The Intellectual Property Law Review, 2008

The cultural meaning of a trademark is built up by creating associative links between the mark and various positive cultural signs such as freedom, youth and happiness. This article argues that these links are reciprocal. That is, while the trademark begins to carry some of the meaning of the cultural signs it has been linked to, these cultural signs also absorb some of the meaning of the mark. This article develops a semiotic model, which helps to analyze the flow of meaning from non-commercial cultural signs into trademarks and from trademarks into other contexts. It argues that, by protecting the cultural meaning of trademarks, the legal system encourages the commercialization of culture and reinforces the dominance of consumer culture in our society.

2013

2005

This article describes the development of trademark liability for corporate criticism or parody on the Internet and the emerging judicial consensus that imposing liability on this form of political speech violates the First Amendment rights of Internet users. The article begins by analyzing the expansion of trademark rights from a method of protecting merchants against counterfeiting into a broad-ranging tort against any invasion of consumers' good feelings towards a business or its products. Courts and Congress made this expansion possible by eroding the requirement of commercial competition as a prerequisite to trademark liability and by crafting sometimes overbroad rules against creating "initial interest confusion," establishing negative associations with a trademark, or "cybersquatting" on a domain name similar to a mark. Fortunately, the federal appellate courts are making it increasingly clear that the First Amendment shields Internet speech devoted to criticizing or making fun of corporations from censorship under trademark law. The author argues that this emerging consensus is consistent with the principal normative justifications for trademark rights as a means of preserving valuable property interests and promoting economic efficiency. Finally, he contends that trademark rights should be restricted to policing commercial competition, rather than non-commercial Internet speech. This limitation is essential if consumers are to preserve their autonomy in light of the pervasive influence of advertising and their ability to participate fully in a democratic society in light of the considerable power of the business world.