A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Graeme B. Dinwoodie and Mark D. Janis
Chapter 4: Trademark bureaucracies
3 A search-costs theory of limiting doctrines in trademark law1 Stacey L. Dogan and Mark A. Lemley Twenty years have passed since William Landes and Richard Posner wrote their classic economic defense of trademark laws.2 Under Landes and Posner’s “search costs” theory, trademarks have value because they reduce consumer search costs and thus promote overall efficiency in the economy. Over the past two decades, the search costs theory of trademark law has attracted a substantial following among both commentators and courts.3 While the search costs theory provides a compelling argument for trademark rights, it also compels an equally important – but often overlooked – set of principles for defining and limiting those rights. Certainly, trademark laws can make it easier and cheaper for consumers to locate products with desired qualities, © 2007 Stacey L. Dogan & Mark A. Lemley. This chapter is a continuation of a larger project on trademarks, and portions of the text are adapted from our article Trademarks and Consumer Search Costs on the Internet, 41 HOUS. L. REV. 777 (2004) [hereinafter Dogan & Lemley, Search Costs]. Thanks to Graeme Dinwoodie, Eric Goldman, Rose Hagan, Laura Heymann, Justin Hughes, Mark Janis, Ariel Katz, Doug Lichtman, Peter Menell, Michael Meurer, Sandra Rierson, Peter Swire, Rita Weeks and participants in workshops at the 2004 IPIL/Houston Santa Fe Conference: Trademark in Transition, Boston University Law School, the Intellectual Property Scholars’ Conference at DePaul College of Law, George Washington University National Law Center, Stanford Law School, Thomas Jefferson School of Law, and the University of San...
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