Memetic Theory, Trademarks & the Viral Meme Mark
Drake University Law School
October 25, 2012
Arizona State Law Journal, Forthcoming
Drake University Law School Research Paper No. 12-32
This Article proposes that memetic theory is a useful lens through which to view trademarks, particularly as there has been a rise in the number of applications for culture-driven words and catchphrases in the United States Patent and Trademark Office. Memetic theory, or memetics, is an emerging field of scientific study related to how units of information evolve and replicate. These units of information, called memes, undergo a process of natural selection similar to that of genes. To view trademarks as memes, they must not only exist in the proper form, but they must also subsist in an environment where replication, variation and selection exist in appropriate measure. Under current trademark jurisprudence, over-protection and over-enforcement of trademarks pose a threat to the natural selection environment. The recent phenomenon of trademark applications for culture- driven words and catchphrases are but one manifestation of the interaction between memetic theory and trademark law. Applying memetics calls for a reassessment of current legal standards, and the Article concludes by offering further insight into where to explore the intersection between this new science and trademark law.
Keywords: trademark, meme, memetic theory, culture, science, evolution
JEL Classification: O34
Date posted: October 25, 2012 ; Last revised: April 19, 2013
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