Trade Marks and Innovation?
G.B. Dinwoodie and M.D. Janis (eds.), Trademark Law and Theory II: Reform of Trademark Law (Edward Elgar, 2021), Forthcoming
37 Pages Posted: 20 Aug 2020 Last revised: 1 Feb 2021
Date Written: July 22, 2020
Until relatively recently, there was a stable consensus: trade mark law had nothing to do with innovation. This consensus was based on the origin indicating function of trade marks. There is no requirement for either the sign or the underlying product to be innovative and many protected marks consist of pre-existing words or images, such as the surnames Ford or McDonald.Trade mark law has therefore not only been historically indifferent to innovation, it has also actively policed this boundary with patent law.
However cracks are beginning to appear in the consensus, for three inter-related reasons.
(1) It has been suggested that successful branding generates a feedback cycle, which helps firms to recoup investments in R&D, while also encouraging such investments in the future.
(2) Trade mark registrations are analysed as indirect and complementary indicators of innovation. They help to identify patterns of innovation, which can be useful for policy formulation.
(3) Trade marks also help to protect and reward forms of innovation which cannot be accommodated in other fields of IP, such as service or marketing innovation.
This chapter critically engages with these claims, to assess their normative implications (if any).
Keywords: trade mark, trademark, innovation policy
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