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This book challenges the philosophical foundations of current trademark systems in the USA and the UK. It argues that the process of trademark creation should be transformed to the more practical and realistic proposition of “co-authorship” of trademarks by both the public and trademark owners. The book develops the “Economic-Social Planning justification”, which departs from the economic argument that trademarks reduce consumer search costs, and then proposes that trademarks should be formulated in a manner which helps foster a just and attractive culture. Trademarks are thus seen as source and origin identifiers, rather than quality identifiers. The book focuses on the often ignored role of the public and their rights in trademarks and calls for the adoption of the confusion rationale for trademark protection, not the dilution individualistic rationale. The two jurisdictions of this book prove adverse effects over the rights of the public in terms of using trademarks in cultural and expressive contexts, thereby threatening the principles of freedom of expression as a human fundamental right.
This thesis challenges the philosophical foundations of current trademark systems. It takes the trademark legislations of the United States and the United Kingdom as case studies for the argument of this thesis. In proving the hypothesis -that the theoretical foundations of trademark systems should be revisited- the thesis argues that the process of trademark creation should be transformed to the more practical and realistic proposition of "co-authorship" of trademarks by both the public and trademark owners. Accordingly, the thesis develops the "Economic-Social Planning justification", which departs from the economic argument that trademarks reduce consumer search costs, and then proposes that trademarks should be formulated in a manner which helps foster a just and attractive culture. Trademarks are thus seen in this thesis as source and origin identifiers, rather than quality identifiers. This thesis advances a new argument insofar as it develops this origin function of trademarks into a modern concept, whereby this is considered as the only primary function of trademarks, and forms the rational basis for trademark protection. This opens the way for other secondary functions such as the quality, advertising and informative functions. More importantly, this thesis focuses on the often ignored role of the public and their rights in trademarks. As such, the most equitable approach, on the basis of the proposed justification, lies in the adoption of the confusion rationale for trademarks protection, not the dilution individualistic and monopolistic rationale. The two jurisdictions of this thesis prove not only that the problem lies in the adoption of dilution, but also in the wide application of the confusion rationale. They also prove adverse effects over the rights of the public in terms of using trademarks in cultural and expressive contexts (for example in the form of trademark parody), thereby threatening the principles of freedom of expression as a human fundamental right.
This Article challenges the common wisdom about the desirability of celebrated trademarks. Contrary to the traditional view, it argues that mega-brands are neither economic evils nor is their function limited to imparting information regarding the physical product they flaunt. The Article also rejects the view that famous marks persuade consumers (often referred to as 'Snobs') to 'irrationally' pay more for the same physical product they could have purchased for less. Rather, it argues that in purchasing a branded good the consumer is actually purchasing three tied products in one package: a physical product, information about the physical product, and an intangible product such as fame, prestige, peace of mind or a pleasant feeling. Contrary to prior literature, this Article argues that the intangible product benefits both producers and consumers. It explores the demand for the intangible product, its impact on pricing, welfare and consumers' and producers' strategies. It argues that under certain conditions one may witness the anomaly of an increase in both price and output, but that such observation does not mandate the conclusion that consumers are facing an up-sloping demand curve as discussed in the literature of conspicuous goods. Instead, the Article proposes that this phenomenon may occur in the traditional down-sloping demand curves and that it is not limited to goods with conspicuous properties. The Article has normative and descriptive implications with regard to three distinct bodies of law: price discrimination, trademark anti-dilution and trade-name law. A direct result is that mega-brands neither confer a monopoly nor foster price discrimination. On the contrary, they enhance competition in both the physical and intangible spheres. The Article also offers a new rational basis for one of the most nebulous doctrines in trademark law: anti-dilution. Anti-dilution law provides special protection to famous marks which is not available to regular ones, and has been unanimously enthroned as one which protects only producers but is injurious to consumers. Conversely, this Article argues that anti-dilution law inures to the benefit of both consumers and producers. It attempts to clear the constitutional concerns that have been raised with regard to the doctrine and explains the fame requirement. The article concludes that Snobs are rational and that there are sound economic justifications for the law's unique protection of famous marks.
The confusion that has accompanied the effort to graft a dilution remedy onto federal trademark law has sown deep uncertainty about the remedy's proper scope and purpose. This confusion is an outgrowth of the peculiar history of dilution theory in the development of trademark law, and the resulting tension between uniqueness-based theories of dilution and theories based on free-riding concerns. This article takes the position that the current conceptual framework for trademark liability is misguided. By focusing its analysis on consumer beliefs about the relationship between a mark and a manufacturer, current trademark doctrine is ignoring a far more persuasive justification for the imposition of liability: debiasing. This article argues that trademark liability is best understood as a legal regime designed to harness the efficiencies of boundedly rational consumer decision-making, while minimizing the effects of resulting biases and errors. An overview of trademark cases reveals that while courts purport to analyze consumer beliefs about the mark/maker nexus, they in fact rely on a limited set of proxy measurements that have little to do with those beliefs. Instead, the proxy factors appear to represent features of the marketplace with strong potential to trigger cognitive phenomena that can generate bias and error. Understanding these phenomena and using them as a guide to set the boundaries of liability provides a more coherent and persuasive justification for the trademark regime than current competing rationales, and offers a potential solution to the long-standing debate between free-riding and uniqueness theories of dilution that would harmonize those theories with infringement policy.
This is the first practical treatise of its kind to approach trademark law from a fully integrated legal and business perspective. It walks you through the major areas of trademark practice: Selecting and adopting trademarks Perfecting, exploiting, and maintaining trademark rights Asserting and defending against trademark claims Business issues in trademark ownership You'll find clear, concise explanations and illustrative case examples to help you take a course of action in the full range of business scenarios. This book covers every key area, including: Trademark selection and adoption Trademark registration Trade dress Conducting due diligence Fair use of the trademarks of others Enforcement letters and more
Written by a team of international experts, marshalled by one of the world’s foremost trademark lawyers, Trademark Dilution and Free Riding is the leading comparative work on trademark dilution. This book is a must-have resource for trademark professionals worldwide, and will also stand as a valuable reference point for intellectual property scholars.