The Brand Defense
57 Pages Posted: 16 Feb 2021 Last revised: 27 Mar 2021
Date Written: November 17, 2020
Declining worker power—and increasing employer power—has suppressed wage growth and increased inequality. This decline is reinforced by contradictions in law that strengthen employers’ bargaining leverage over workers. This Article exposes those contradictions, tracing how employers have exploited the consumer rights revolution to devise brand protections and defenses that justify their control over vertically-disintegrated labor markets. The Article takes a systemic view of intellectual property, antitrust, and work law to uncover their interconnected protection of employers’ brand rights at the expense of worker power. Based on the insights derived from this analysis, it proposes a suite of doctrinal and regulatory reforms to work law, antitrust doctrine, and trademark licensing, all as a means of “defetishizing” brand and reversing the trend of declining worker power.
The Article first describes the legal infrastructure devised by employers to strengthen their licensing rights and leverage their trademarks and brand-based value while using consumer welfare-focused brand defenses to immunize them from both antitrust and work law liability. It exposes the contradictory assumptions and incoherent doctrine that has emerged under these three intersecting legal frameworks which, together, create a system where “heads employers win, tails workers lose”. It next describes the economic effects of legal brand defenses on workers and inequality. It outlines the mainstream economic justifications for regimes that protect licensor branding rights—and their immense value for franchisors and outsourcing firms—even as the workplace restructuring they enable places downward pressure on workers’ wages and bargaining leverage. Finally, it proposes doctrinal and regulatory reforms in work, antitrust, and trademark law to limit employer leveraging of brand defenses at the expense of workers.
Keywords: Labor Law, Employment Law, Antitrust Law, Trademark Law, Intellectual Property Law, Franchise Law
JEL Classification: K11, K21, K31, L42
Suggested Citation: Suggested Citation