New Horizons in Intellectual Property series
Chapter 6: Concluding Thoughts
This book has examined the economic impact of trade marks and the economic implications of their legal protection, focusing on trade mark law in the European Union under the Directive. Adopting an economic perspective on this law is appropriate in view of the economic objectives behind the Directive’s substantial harmonization of trade mark law. Thus, the preamble to the Directive links the legal protection of trade marks to such economic goals of the European Union as the free movement of goods, the freedom to provide services, undistorted competition and the proper functioning of the internal market. The ECJ has also treated the economic role of trade marks as one of facilitating competition between undertakings, though how they do this depends partly on the conception of competition as an objective. Chapter 1 noted that there are differing economic conceptions of competition and of how it serves the public interest, focusing in particular on the difference between static (or equilibrium) and dynamic conceptions. Trade marks can help to increase overall wealth in terms of both conceptions. Thus, in the static conception, competition is a feature of an ideal market state or structure in which ﬁrms have no control over the price they can charge for their products, an optimal allocation of resources is achieved and overall wealth is maximized. In practice, markets diverge from the conditions that would be necessary for them to be perfectly competitive in accordance with this ideal, which include homogeneous products and perfectly informed consumers. However, legal rules...
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