An Information Approach to Trademarks
Deven R. Desai
Thomas Jefferson School of Law
Georgetown Law Journal, Vol. 100, No. 6, (2012)
Trademark law’s current conception of information and how trademarks enable information transmission is underdeveloped. It has led to a world where trademark law hinders rather than “fosters the flow of information in markets.” Instead of promoting information exchange across and within markets, “[trademark] law’s core mission, as it is understood today, is to facilitate the transmission of accurate information to the market.” The distinction reveals deep problems within trademark law. Who can or may send a message about a trademark matters. When a mark is chosen by a mark holder, the possible messages that can and should be sent are unknown. Yet, trademark law’s view of information, source, and sender privileges the mark holder’s messages as the one and only - the pure source - for all messages about the mark and treats other communications about the mark as noise. This view reduces the ability for competitors to challenge a mark holder’s position in the marketplace and for active consumers to question or celebrate the mark holder’s goods, services, or business practices. As Professors Lemley and McKenna might put it in their article to which this paper responds, the situation reduces the possibility of substitutes.
As the first step in a larger project about the system behind trademarks and other commercial symbols, I argue that an information approach to trademarks based on Claude Shannon’s information theory will clean up and sharpen trademark law’s understanding of information. This approach will allow trademark law to live up to the normative idea that trademarks ought to enhance information flow in markets. That in turn may increase the possibility for substitutes, which Lemley and McKenna argue is a way to understand trademarks as a competition doctrine.
Number of Pages in PDF File: 13
Keywords: trademarks, brands, competition, information theory, Claude Shannon
JEL Classification: D43, D41, D42, D83, K21, L11, L12, L40, L41, L42, M31, B21Accepted Paper Series
Date posted: August 31, 2012
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