Accentuate the Normative: A Response to Professor McKenna
98 Virginia Law Review In Brief 48 (2012)
13 Pages Posted: 2 Apr 2012 Last revised: 2 Oct 2012
Date Written: April 2, 2012
This response to Mark McKenna's "A Consumer Decision-Making Theory of Trademark Law" argues that McKenna's project presents a compelling normative account of trademark law that unfortunately suffers from some blurring of "is" and "ought." I attempt to tease apart the descriptive and normative aspects of McKenna's argument. While I disagree with him as to whether search-costs theory is responsible for recent expansions of trademark rights, I think he is correct that search-costs theory is an inadequate normative framework for trademark law. While McKenna's consumer decision-making theory is a good start, I argue that it must confront some fundamental normative questions -- such as the relative importance of welfare maximization and the nature of consumer autonomy -- in order to fulfill its potential as an alternative prescriptive theory of trademark law.
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