Title

“Brandwidth” Gone Wild: Restoring a More Competitive Balance to Trademark Law for the Benefit of Consumers

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Abstract

Originally, trademark law only protected against close copying of trademarks on competing products. However, the scope of trademark protection has inexorably expanded to include confusion about source or sponsorship for related products (infringement) and dilution by blurring of famous trademarks even when used on completely unrelated products. In addition to this expansion of trademark law largely at the behest of trademark registrants, businesses have developed operational strategies for expanding the product scope of their trademark protection. Two such strategies include developing a family of brands as done by McDonalds or a conglomerate brand as exemplified by Virgin Enterprises. This expansion of product coverage for trademark law is referred to here as “brandwidth.”

This paper suggests that contrary to the proclaimed ownership of “their” trademarks by brand owners, consumers decide which brands to accept, to like, and even to love. Consumer interest therefore suggests that brand owners should not have complete control over “their” trademarks. Furthermore, there has long been concern about trademark monopolies. Concepts such as trademark fair use and genericide recognize this public interest in some uses of trademarks by third parties. Contrary to assumptions behind trademark law, marketing studies suggest that unsuccessful brand extensions of well known trademarks are unlikely to substantially harm to the original brand. This paper proposes that trademark law be modified to encourage competition by providing greater choice opportunities for consumers and to eliminate dilution by blurring.

Disciplines

Intellectual Property Law | Law

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