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Trademark law is incoherent, and it fails to manage all the interests at stake in the modern business environment. This failure flows from a core misunderstanding. Trademark law has not grasped that is managing brands, not trademarks. In this article, Professor Deven Desai develops a new theory of trademarks which provides trademark law with a way out of its current confusion. Professor Desai argues that trademark law really protects brands and must fully embrace this fact. He demonstrates how his brand theory of trademark law will avoid the incoherence and problems from which trademark currently suffers and offers a framework to understand the purpose, function, and scope of trademark law.Published version, titled 'From Trademarks to Brands', Florida Law Review, Vol. 64, No. 4, pp. 981-1044, 2012.
Boasting an impressive list of contributors, this first edition of Trademark Law and Theory brings together a compilation of well-written and powerfully argued works by leading international academics. The book is certainly one of the most extensive and thought provoking overviews of contemporary trademark law and theory yet to be published. . . Whilst all the contributions share in common their examination of the rapidity of change within trademark systems, the editors should be commended on their generous seasoning of other cross cutting themes throughout the Handbook. . . This fascinating compendium enriches our understanding of the shape, substance, and form of trademark law and theory. . . this Handbook is perhaps a rare exception to the adage that no book can be all things to all men . Its broad sweep approach and cross cutting themes enable a range of interested parties, such as policymakers; academics in the fields of marketing, business, consumer psychology; in addition to the usual suspects; to dip in and out of the Handbook as they wish. . . a unique and erudite collection of essays concerning trademark law and theory. . . Odette Hutchinson, Communications Law Trademarks is an area of vital, practical everyday concern, and the idea of producing a volume that brings together the perspectives of 19 thoughtful and experienced legal scholars is a bold and exciting initiative. The present volume does not disappoint and the two editors are to be congratulated on orchestrating an ensemble that simultaneously informs and stimulates. The title is apt: it is truly contemporary and is highly theoretical and doctrinal in character, while the interesting choice of the word handbook suggests clearly that this is a work in progress, a snapshot at a particular time of the challenging lines of individual research that each contributor to the volume is undertaking. It is a fine addition to a larger series of research handbooks in intellectual property published by Edward Elgar under the series editorship of Jeremy Phillips. . . The editors have done a fine job in presenting this material in such a clear and coherent fashion. . . this is an excellent and rewarding volume of readings that will be of interest to anyone working in the area of trademarks, whether as an academic or as a practitioner. Indeed, for the practitioner it will be of particular value, in that it contains, and opens up, many areas of inquiry that may not always be apparent when working at the coalface of a particular problem. . . For both kinds of readers, the real value of the volume is to have so many different kinds of perspectives brought together within the space of a single volume. . . this is a handsome production: the publishers and editors are to be commended on the clarity and cleanness of the typeface and headings, the thoroughness of the index, and the accuracy of their proof reading. It has also been given a striking and evocative cover. Sam Ricketson, University of Melbourne Law School Australia, European Intellectual Property Review Trademark Law and Theory is a first-rate exploration of the issues that will dominate trademark law in the 21st century. Authors from five continents provide a truly global perspective on the present and future of trademark law. An exceptional collection of contributors and contributions. Robert Denicola, University of Nebraska, US This compendium is an excellent source of writing on all aspects of trademark law and practice by experts from Europe, the United States, South Africa, Singapore, New Zealand and Australia. It will be a stimulating read for lawyers, academics, students and policymakers alike on the present and developing trends in law and policy relating to trademarks as marketing tools and cultural artefacts. The editors deserve congratulation on their concept for the book and their judicious selection of material. David Vaver, University of Oxford, UK All students, young and older, in the burgeoni
The business world has moved from using trademarks -- simple symbols identifying products -- to brands -- rich symbols that feed business strategy. At the same time, networked and empowered consumers are using brands, brand language, and branding strategies to make decisions about what they purchase, express preferences about how corporations conduct their business, and call for changes in corporate practices. These changes are the future of commerce. But trademark law has not kept pace with either. This Article argues that because brands are governed by trademark law, the full realization of brands as information resources is hindered. Current trademark law is blinkered and confused, and consequently fails to manage all the interests at stake in the modern business environment. This failure flows from a core misunderstanding: trademark law has not grasped that it is managing brands, not trademarks. To address this shortcoming, this Article develops a new theory of trademarks: brand theory. This theory explains riddles within current trademark doctrine and provides the foundation for a new normative approach to trademarks. It expands the current information-based understanding of trademarks to embrace the possibility that trademarks can be true information resources for all stakeholders in a brand -- corporations, consumers, and communities -- rather than vessels for only one side's views. In short, a brand theory of trademarks offers the opportunity to bring trademark law into the information age.
As those involved in commerce are aware, preventing competitors and others from imitating successful brands is a difficult and costly task. This book serves to inform the reader concerning complexities of the issues of brand imitation, integrating the disciplines of psychology, business, and law to the area of trademark infringement and counterfeiting. Principles and theories from psychology and how they are relevant to consumers' perceptions in the marketplace are used to explain why competitors steal the intellectual property of another company or entity. The possibility of brand imitation or counterfeiting should be contemplated in designing new products or brand packaging, just as it is in the printing of currency. It is the intent of The Psychology Behind Trademark Infringement and Counterfeiting to provide those involved in commerce with some understanding, some ideas, and perhaps some strategy for building differentiated brands that are easy to protect. Brand managers, expert witnesses to trademark cases, intellectual property lawyers, and academics of consumer behavior and marketing will find this book useful to understanding consumer motives and processes of trademark infringement and counterfeiting. It could be used as a textbook in courses on marketing.
This far-reaching Research Handbook is a follow-up to Graeme B. Dinwoodie and Mark D. Janis’s successful book Trademark Law and Theory. It examines reform of trademark law from a number of perspectives and across many jurisdictions, and contains insights from a stellar cast of trademark scholars.
Trademarks are indeed about information, but trademark doctrine misunderstands trademarks' information function. Trademark doctrine takes a broadcast view in a networked world. Rather than a world where a single source transmits messages to a passive public, we live in a world where many actors use trademarks to transmit data about a mark. Decisions are made based on data received, but trademark law's broadcast model has a naïve view of whether the data leads to good or bad decisions. This Paper explores what happens if trademarks are taken to be part of an information network. I show that by ignoring the information network nature of trademarks, current trademark doctrine favors herding and cascade problems, ensconces incumbents, and thwarts competition. One way to describe this situation is as one of bounded information and rationality. Although these concepts lie at the heart of the network theory and behavioral economics literature that explains herds, and at the heart of the law and economics approach to trademark law, the law and economics approach reaches conclusions about the implications if bounded information and rationality far different than the other disciplines. I argue that the law and economics conclusions are incorrect. They foster further bounded information and rationality problems that protect incumbent brand holders rather than enhancing consumer welfare. Furthermore, I argue that insights from information network and behavioral economics theory explain and enhance our understanding of how to correct these outcomes. In short, these theories better answer why recent calls favoring less trademark protection and increasing information available to consumers are correct.
This discerning and detailed Research Handbook examines the law of trademarks, unfair competition, and dilution from a variety of law and economics perspectives. With a comprehensive exploration of trademarks and trademark law, it provides an excellent illustration of the analytical diversity that the law and economics approach can bring to legal issues.
Brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Contrary to the law's conception of trademarks, brands are used to indicate far more than source and/or quality. This volume begins the process of broadening the legal understanding of brands by explaining what brands are and how they function, how trademark and antitrust/competition law have misunderstood brands, and the implications of continuing to ignore the role brands play in business competition. This is the first book to engage with the topic from an interdisciplinary perspective, hence it will be a must-have for all those interested in the phenomenon of brands and how their function is recognized by the legal system. The book integrates both a competition and an intellectual property law dimension and explores the regulatory environment and case law in both Europe and the United States.
This book is concerned with the nature and function of modern trademarks,a subject which has been surprisingly ignored by contemporary writers. There is a large and quite technical body of rules which regulate when people may use particular symbols in a particular way. These are the symbols which permeate everyday life, and which, from time to time, become cultural icons. There is also a large body of writing on the economic functions of trademarks. The aim of this book is to offer a systematic examination of the function of trademarks and the purpose of the law protecting trademarks within the context of the economic function of this branch of the law. One of the main premises on which the work proceeds is that the modern trademark is a creature of the post-industrial consumer society that has been protected for fear of the anticipated consequences of not providing protection. This forms the backdrop to a careful examination of the law of trademarks and related areas, such as merchandising, brand advertising, trade dress protection and comparative advertising, and informs the author's legal analysis and conclusions.
Developments in trade marks law have called into question a variety of basic features, as well as bolder extensions, of legal protection. Other disciplines can help us think about fundamental issues such as: what is a trade mark? What does it do? What should be the scope of its protection? This volume assembles essays examining trade marks and brands from a multiplicity of fields: from business history, marketing, linguistics, legal history, philosophy, sociology and geography. Each chapter pairs lawyers' and non-lawyers' perspectives, so that each commentator addresses and critiques his or her counterpart's analysis. The perspectives of non-legal fields are intended to enrich legal academics' and practitioners' reflections about trade marks, and to expose lawyers, judges and policy-makers to ideas, concepts and methods that could prove to be of particular importance in the development of positive law.