A New Economics of Trademarks

Northwestern Journal of Technology and Intellectual Property, Vol. 5, No. 1, Fall 2006

Seton Hall Public Law Research Paper No. 886045

47 Pages Posted: 24 Mar 2006

See all articles by David W. Barnes

David W. Barnes

Seton Hall University - School of Law

Abstract

Conventional wisdom holds that trademarks are nothing like other intellectual property. Copyright and patent law are theoretically based in public goods theory and designed to promote creation and disclosure of original expressions and novel, useful innovations. By contrast, trademarks are private goods and trademark law is designed to promote trade and encourage competition.

This article challenges conventional wisdom by demonstrating that trademarks are a type of public good that contributes to the public stock of useful ideas just as patented and copyrighted works do. This economic perspective suggests, again contrary to conventional trademark theory, that competitive markets fail to supply an optimal amount of information about products and their sources. Conventional theory recognizes the difficulty in excluding competitors from using a supplier's trademark unless there is a legal regime to protect marks. Conventional theory fails to consider the non-rivalrous character of referential and customary trademark use by consumers, competitors, non-competitors, and commentators.

The public use perspective on trademarks enriches our understanding of the structure of trademark law, the extent to which trademark law addresses the market failures associated with trademarks' public goods character, and the current debate concerning the propertization of trademarks.

Keywords: public goods, trademark, market failure, patent, copyright, non-rivalrous, allocative efficiency, non-excludable

Suggested Citation

Barnes, David W., A New Economics of Trademarks. Northwestern Journal of Technology and Intellectual Property, Vol. 5, No. 1, Fall 2006; Seton Hall Public Law Research Paper No. 886045. Available at SSRN: https://ssrn.com/abstract=886045 or http://dx.doi.org/10.2139/ssrn.886045

David W. Barnes (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102
United States
201-709-8829 (Phone)
973-642-8194 (Fax)

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