Trademark Law and Theory
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Trademark Law and Theory

A Handbook of Contemporary Research

Edited by Graeme B. Dinwoodie and Mark D. Janis

This important research Handbook brings together a set of illuminating works by the field’s leading scholars to comprise one of the broadest and most far-reaching overviews of trademark law issues. Organized around three areas of inquiry, the book starts by offering a rich variety of methodological perspectives on trademark law. Reflecting the multifaceted nature of contemporary trademarks, contributors have drawn from law and economics, political science, semiotic theory, and history. The Handbook goes on to survey trademark law’s international landscape, addressing indigenous cultural property, human rights issues, the free movement of goods, and the role of substantive harmonization. It concludes with a series of forward-looking perspectives, which focus on trademark law’s intersection with the laws of advertising and free speech, copyright law, cyberspace regulation, and design protection.
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Chapter 4: Trademark bureaucracies

Robert Burrell


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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