A Handbook of Contemporary Research
Edited by Graeme B. Dinwoodie and Mark D. Janis
Section B: Limiting the Scope of Trademark Rights
12 Restricting allusion to trade marks: a new justification Michael Spence* I. Introduction The scope of an intellectual property right should reflect its justification: the assistance of state power ought only to be available if those subject to that power can be offered a reasoned account for its exercise. This principle is a vital check on arbitrary government and means that the intellectual property systems, even if in fact they are the product of historical contingency, must be explained and developed in ways that reflect consistent and coherent purposes. In the context of trade mark, protection of a trader against the use of signs that might be confused with her trade mark is relatively easy to justify. First, to persist in using a potentially confusing sign is to engage in a type of deliberate deception. The circumstances in which deliberate deception is wrong are something about which moral philosophers are apt to disagree. But none would condone deception for the purpose of profit at the expense of another person, and it is of this that trade mark infringement involving likely consumer confusion is exemplary. Second, causing consumer confusion has undesirable economic consequences. An important function of trade marks is to reduce consumer search costs, and to maintain the incentive that a producer has both to invest in product quality and to supply goods at the lowest possible price. This is especially the case with “experience” goods, those which a consumer must try in order to determine whether they meet her...
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