Trade Mark Bureaucracies
Trademark Law & Theory: A Handbook of Contemporary Research, M. Janis and G. Dinwoodie, eds., Edward Elgar, 2007
52 Pages Posted: 4 Nov 2007
Academic discussions of the justifications for trade mark protection have focused on the arguments that trade marks reduce consumer search costs and protect against misappropriation of other traders' labour and investment. One thing that is striking about these justifications, however, is that they provide little explanation of trade mark registration. This disjuncture between the standard justifications for trade mark protection and the existence and operation of registered trade mark systems is significant, because having a registration system requires a significant expenditure of resources. The mere fact that such systems are now largely self-funding should not blind us to the fact that the resources expended on them could be employed in other ways. The difficulty is that it is hard to find a truly convincing justification for trade mark registration. This is not to say that registration fails to perform any useful function, but rather that the public benefits offered by registration do not seem sufficient to justify the elaborate edifices that registered trade mark systems have become. It might, therefore, be possible to make a case for the abolition of trade mark registration. However, given that trade mark registration now forms an integral part of commercial life in most developed countries, it would be both premature and, from a practical perspective, pointless to call for the abolition of registration. Recognition of the problematic nature of trade mark registration ought instead to be treated as a spur for thinking about how trade mark registration can best be made to serve useful ends. Such an assessment requires careful attention to be paid to the way registered trade mark systems function in practice. Specifically, this means that consideration needs to be given to the way trade mark bureaucracies function and to how such bureaucracies interact with courts, other government agencies, users of the trade mark system and their legal representatives. Unfortunately, such an analysis seems to suggest that there are likely to be significant obstacles to ensuring that trade mark registration becomes better focused on achieving publicly desirable goals. Whilst recognition of such obstacles undermines further the case for registration, it is only once we have reached this point that we can gain a clear picture of the consequences of providing protection for trade marks as a species of bureaucratic property.
Keywords: marks, justifications, registration, registered trade marks, new public management, bureaucracies, bureaucratic property
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