Work, Identity, and the Regulation of Markets: A Study of Trademark Law in the United States and Germany

Abstract

This article considers how legal systems capture different cultural perceptions of work in an individual’s life. We inquire how two models—“human capital,” based on the works of Adam Smith; and “vocation,” based on the works of G. W. F. Hegel—are reflected in legal regulations and judicial rhetoric in the United States and Germany. Specifically, we examine how these two legal systems treat the practice of using personal names—the most direct referents to individuals’ identities—in business. We discuss three sets of cases: cases involving the use of personal names as trademarks, cases involving conflicts between parties with similar names, and cases involving the transfer of rights in personal names. The article demonstrates that the US legal system treats work as a commercial asset, as “human capital” in Smith’s sense, whereas German law perceives work as an integral part of one’s identity, echoing the Hegelian line of “vocation.”