Function Of Trademark Research Articles

A Brand Theory of Trademark Law

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.

One Trademark Per Source

Trademark law is unjustifiably permissive because it protects more than one mark for each supplier of goods and services. Suppliers need some exclusive symbol to indicate that they are the only source of goods and services carrying that mark. Trademarks are, however, more than source-indicators. They are marketing devices. Suppliers use trademarks to attract consumers’ attention to their products by suggesting unique characteristics and qualities, by surrounding the products with an aura of superiority or desirability, or simply by being clever or appealing. No one supposes that marketing devices, as distinguished from source indicators, should receive any intellectual property law protection whatsoever. Multiple marks are not necessary to indicate source. They may help suppliers create market niches for their products by giving their products names that make them appear to be (accurately or not) unique types of products. Everyone familiar with trademark law understands that intellectual property protection does not extend to generic or merely descriptive terms - those labeling types of goods or describing goods. It is not as obvious that even fanciful and arbitrary trademarks are simultaneously both source indicators and indicators of types and characteristics of products that have acquired descriptiveness. This article proposes and justifies a radical restructuring of trademark law limiting trademark protection to one mark per source, a signal rule. It argues that the proper scope of trademark law requires emphasizing source-indicating function of trademarks and liberating the product-describing function. It suggests a program for minimizing the dislocation costs to consumers and suppliers that result from removing trademark protection from many famous marks. Protection of marketing devices makes it more difficult for competitors to attract consumers and for consumers to learn about alternative suppliers. Limiting suppliers to a single mark is sufficient for source-indicating purposes, enables consumers to know what products compete to satisfy their needs, and makes it easier for smaller competitors to supply them, facilitating competition. The signal rule creates a superior balance between exclusive trademark rights and public access to means of expression.

Trademarks as a Media for False Advertising

This Article explores an unnoticed aspect of trademark law which in some instances may constitute a license to cheat. It shows that under certain circumstances a seller can use its own trademark to mislead its customers, free from legal sanction, in contexts where the same behavior would be sanctioned if the seller used other advertising media. The Article then explores how an alternate conception of the economic function of trademarks can be used to understand the informational value of trademarks and their advertising function. After identifying circumstances appropriate for legal intervention, the Article concludes with a proposal for a new interpretation of the false advertising provision in the Lanham Act to eliminate this disparity.

A Study on the Function of Trade Mark and the Limit of its Protection from the Perspective of Dilution Theory

A Study on the Function of Trade Mark and the Limit of its Protection from the Perspective of Dilution Theory

Getting the Word Out: The Informational Function of Trademarks

This article challenges the statement that “the only legally relevant function of a trademark is to impart information as to the source of the product.” Information about the source of the product undoubtedly helps the consumer choose the product she wants from a set of possible products. This article argues, however, that the informational function of trademarks is broader: in addition to providing information about the source, a trademark often provides information that reduces consumers’ uncertainty about the product’s qualities and impacts purchasing decisions. Specifically, this article shows that a trademark not only helps the consumer choose the product she wants, but it can also help her decide how many units she should purchase of that product. This article then draws on several examples to illustrate that the reduction in consumers’ uncertainty enhances welfare but that under certain conditions it may be used by unscrupulous sellers to defraud customers. Drawing on these insights, this article turns to explain different types of regulations, the optimal investment in trademarks, and offers an alternative explanation as to why trademark law allows sellers to use “deceptively misdescriptive” marks.

The Trademark Function of Authorship

The use of authorial marks in relation to the sale of creative works, like the use of business trademarks in relation to the sale of goods and services, creates social benefits that deserve legal protection. Authorial attribution acts as an incentive to authorial production, provides valuable information to consumers, and provides additional social benefits that go beyond issues of market efficiency. However, the use of authorial marks, like the use of trademarks, can create social harms. Just as counterfeiters place illegitimate trademarks on goods, exploiters of entertainment markets may be tempted to misattribute authorship. In the United States, such deceptive practices were traditionally subject to the remedial mechanisms of trademark and unfair competition laws. However, in a recent decision, Dastar Corp. v. Twentieth Century Fox Film Corp. (2003), the United States Supreme Court held that federal trademark law does not address the misattribution of authorship. The Dastar decision stated that trademark protections were designed to protect the creators of tangible products sold in the marketplace. The Court stated that trademark law was not designed to protect the interests of those who originate creative ideas or communications. This article explores society's interests in ascertaining the authorship of creative works and explains how those interests both resemble and diverge from standard trademark interests. It concludes that authorship marks are sufficiently analogous to trademarks that the Dastar approach is misguided. Consumers can and should be protected from misattributions of authorship where such misattributions can easily be remedied by law and where the failure to provide such remedies is likely to lead to significant consumer harms.

Color codification: law, culture and the hue of communication

This paper explores the intersection between color, culture and the legal domain; it reveals how recent, and disturbing, developments in trademark law have allowed for corporate ownership of the powerful communicative media of color and discusses the implications of this (colorful) codification. Mapping the communication of color within our contemporary legal, political and social environment, the paper addresses how color's vibrant significatory power is hemmed in by law, by (legal) language and by corporations. Law, it is argued, stands as one of the primary and most powerful practical “tools” used to shape, standardize and contain contemporary communication – and currently laws governing trademark function to recode and constrain the presumably boundless media of color. This is troubling, since our colorful environment becomes simplified when the array of meanings attributed to a particular hue are narrowed and then granted legitimacy by the courts.

How the Domain Name Scruffles are Rocking the Foundations of Trade Mark law

The central proposition of this paper is that it is no longer valid to assert that the only and proper function of the trade is to denote the source of the product to which it is affixed. Trade marks are being employed in many diverse ways. In the age of mass media, trade marks may provide the key to marketing successfully. The dilution doctrine has developed in recognition of the potential value of a trade mark to tis owner. Anti-dilution provisions, as far as they go, do provide a useful tool in protecting the trade mark itself. However, as technology continues to advance, so does the trade mark function. The so-called domain name disputes, primarily in the United States are evidence of this claim. Not only have the decisions in these cases furthered the development of the trade mark legislation, they have demonstrated the inadequacies of the current trade mark legislation and the desperate need for reform. These inadequacies are examined and reform is proposed. Finally, the paper assesses the desirability of allowing the further expansion of the trade mark. It is submitted that the proper expansion of the trade mark should not be resisted.

The Modern Lanham Act and the Death of Common Sense

Trademark law has expanded dramatically in the last fifty years, with a number of trends combining to give trademark owners something they have never had before -- protection of marks akin to the protection given real property. Professor Lemley evaluates these changes, and suggests that they are not supported by the economic learning on the functions of trademarks and advertising. He argues that many of these legal developments are unwarranted, particularly the cases which give trademark owners power to prevent political and social commentary, or to own the trademark as a thing in itself.

Stimulus Control of Consumer Opinion by Brand Names: A Social Conditioning Analysis

A field experiment is reported that investigated the relationship between brand names (conditioned stimuli) and consumers’ opinion (evaluation) responses. Product trademarks (Pepsi or Coke), but not actual products (Classic Coke or Pepsi), influenced consumers’ ratings during a cola’ laste test.” The effect of brand names depended on the initial attitudes of consumers (conditioning history). Consumers with positive-initial attitudes to a brand (Coke) showed higher opinion and evaluation scores to products with this brand name than to products with an alternate-brand name (Pepsi), regardless of the actual products sampled. In contrast, consumers with negative (or neutral) attitudes to the brand (Coke) rated products higher in the presence of an alternate-brand name (Pepsi) than when the brand name accompanied the sampled product. This interaction of brand name with initial attitude was not mediated by product knowledge (i.e., cognitive responses). Additionally, as consumer preference for the brand (Coke) increased, the magnitude of the opinion and evaluation responses decreased for products with an alternate-brand name (Pepsi). Consumers with exclusive preference for a brand thus derogated any product with a competing-brand name. Generally, these results are compatible with a social-conditioning analysis of attitudes that emphasizes the multiple-stimulus functions of product trademarks, labels, and brand names.

Trademark function of symptoms in a mental hospital.

Trademark function of symptoms in a mental hospital.

The Lanham Act and the Social Function of Trade-Marks

Lawyers are so in the habit of thinking of trade-marks in their legal aspects that they sometimes lose sight of the social values that are implicit in them. I am going to take the liberty of recalling a little of the philosophy underlying trademarks as a social institution, and the need of protecting them against misuse. Trade-marks are one of the oldest of human institutions. Wherever are found the remains of early civilizations, in Egypt, Crete, Greece, or Rome, things with trade-marks on them turn up. Indeed, an industrious antiquarian was able to compile a directory of the lamp makers of ancient Athens from the marks on the broken clay lamps that were found in the city refuse heaps. The Egyptian law required the owner of every brickyard to place his name on the bricks he sold, and also the name of the slave who actually made the bricks, so that responsibility for defective bricks could be fixed. This practice was a characteristic of the guild system of the Middle Ages. All manufactures-misteries, as they were called-were confined to trade guilds. No one could engage in trade unless he was a member of such a trade union. The guild statutes required each article made to bear the guild mark, accompanied the mark of the individual artisan. This was for two purposes. The guild mark was required to show that the article was not contraband-that is to say, non-union-and the requirement that the individual artisan's mark be stamped on the goods was to fix responsibility for bad work, so that the slovenly worker could be identified and disciplined. For example, helmet makers petitioned in 1347 against the foreigners who, not knowing their trade, intermeddled in the making of helmetry, by reason whereof many great men and others of the realm have been slain through their default. The law of the armorers compelled each member of the guild to mark his product to fix responsibility within the guild for faulty work. And the reason was clear enough. A fighting man staked his life on the weapons he bore and the armor he wore, and, if anything went wrong, his widow or next of kin wanted to find the varlet who was responsible.