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The Trademark Paradox

Trademarks and Their Conflicting Legal and Commercial Boundaries


Catherine Manley

Trademarks play a fundamental role in our everyday lives as consumers, helping us to quickly choose the products we like and avoid those that we don’t. Trademarks are also essential elements in a competitive market, allowing companies to build brand loyalty without fear of free-riding by competitors. Trademark laws thus diminish customer confusion, make «communication» between seller and buyer simple, and prevent unfairness. However, expanding legal protection, coupled with commercial «bullying», have served to restrict, rather than promote, competition. The paradox lies in how we have dealt with the conflict: in our quest to promote competition, we have failed to adequately balance private interests (e.g., protection of business goodwill) with public interests (ensuring a robust, competitive market without restraints on trade). This book examines trademarks’ conflicting legal and commercial boundaries. It concludes by suggesting principles and guidelines to help resolve the imbalance.
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0. Introduction


← 14 | 15 → “…the creation or recognition by courts of a new privateright may work serious injury to the general public, unlessthe boundaries of the right are definitely established andwisely guarded.”1

Justice Brandeis2


0.1The Trademark Paradox

It would be almost impossible to imagine a world without trademarks. From the moment we wake up (turning off the Sony alarm clock, showering under the Hansgrohe shower head, getting into our BMW to drive to work, stopping for a Starbucks coffee, turning on our Dell computer, opening up our Microsoft office programs, searching for something on Google, making a call on our Samsung smartphone, checking emails on our Blackberry, quenching our thirst with a Coca-Cola, or buying a book on Amazon) until the end of the day (when we can finally enjoy a glass of Veuve Cliquot with friends), we interact – whether consciously or unconsciously – with a constant parade of trademarks, each vying for our attention and selection.

Trademarks play a fundamental role in our everyday lives as consumers as well as in the market in general. They help us distinguish the products we like and avoid those that we don’t, acting as a short-hand signal to give us certainty of what product we have chosen. They give us information about the source, manufacturer, or quality of the products we are purchasing, allowing us to make such choices quickly and efficiently. They allow companies to differentiate their products from those of their...

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