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[W]hat appear to be private disputes among hucksters almost invariably touch the public welfare. We shall therefore be concerned to ask, when courts protect trade symbols, whether their decisions further public as well as private goals.1
When Ralph Brown wrote his seminal article on trademark law fifty years ago, the modern era of trademark law had just begun. The Lanham Act, the foundation of trademark law today, was only two years old,2 and the nature of modern commerce was only just beginning to take shape.
Quite a lot has changed in fifty years. More and more of the currency of commerce is not goods, but information and even brand-loyalty itself. The economics of trademarks and advertising has grown increasingly sophisticated over this period. Most economists today view trademarks as valuable aids to efficient markets. Contemporaneous with this economic development, there has been a gradual but fundamental shift in trademark law. Commentators and even courts increasingly talk about trademarks3 as property rights; as things valuable in and of themselves, rather than for the product goodwill they embody. Courts protect trademark owners against uses that would not have been infringements even a few years ago and protect as trademarks things that would not have received such protection in the past. And they are well on their way to divorcing trademarks entirely from the goods they are supposed to represent.
Unfortunately, the changes in trademark doctrine over the last fifty years are not supported by the new economic learning. Rather, these changes have loosed trademark law from its traditional economic moorings and have offered little of substance to replace them.
Brown's doctrinal approach offers a healthy dose of common sense in thinking about trademark law. While some of his observations about the economics of advertising should be read in light of more recent economic work, his philosophical and doctrinal observations about trademark doctrine and its fit with economic theory are worth reconsidering in light of the trends in trademark doctrine. In Part I of this Essay, I provide a brief sketch of the economic foundations of trademark law, considering both Brown's article and some of the new learning on the economics of advertising. I argue that the new economic learning, while useful, does not fundamentally change the nature...