Brandright

Abstract

Brands are collaborative and creative in a way that conflicts with the traditional framework of trademark law. To develop a brand, trademark owners invite consumer involvement in the brand development process. To date, that consumer involvement has only been minimally recognized, and in fact, is often unfairly treated like trademark infringement. This Article proposes the creation of a new intellectual property regime that provides affirmative use rights (called “brandrights”) to consumers. The recognition of brandrights resolves the disconnect between trademark law and brand development that has resulted in companies disenfranchising their own consumers. Trademark law’s foundational purpose is to protect consumers from being misled about the source of a good or service. While trademarks are typically included within the larger concept of a company’s brand identity, brands are used for purposes other than assuring a consistent source for products. Instead, marketers envision a brand as a story that unfolds over many marketing efforts. This brand narrative offers consumers creative content with which to engage and adopt as part of their own self-identity. Numerous scholars have criticized the expansion of trademark law resulting from the law’s attempts to accommodate the concept of branding. This Article argues that brandrights provide the expressive freedom and legal flexibility essential for collaborative brand development.

Keywords: Trademark, Branding, Marketing, Intellectual Property, Copyright