Robert G. Bone
Boston University School of Law Working Paper 04-06
Abstract
The standard account holds that trademark law, at its core, aims to protect
consumers from deceptive and confusing uses of source-identifying marks.
However, there is a problem with the standard account. It cannot explain
a number of important trademark doctrines, many of which, like the protection
accorded trade dress, have expanded the scope of trademark rights in recent
years. Some critics argue that these puzzling doctrines reflect a radical
shift away from the standard account and toward a new property theory
of trademark law that focuses not so much on the quality of information
available to consumers as on the seller's ability to appropriate the full
commercial value of its mark.
This Article offers a different, and less alarming, explanation for many
of the puzzling doctrines, one that does not require a radical departure
from the standard account. This alternative explanation focuses on the
enforcement costs of implementing law based on the standard account. Enforcement
costs include the administrative costs of adjudicating trademark lawsuits
and the error costs of over- and under-enforcing trademark rights. For
a number of reasons, trademark law generates high enforcement costs, and
many of the puzzling features of trademark doctrine can be understood
as legal tools to manage these high costs. In particular, courts adopt
general rules or standards that protect trademarks more broadly than the
standard account's substantive policies support, but those rules and standards
can be justified by the administrative and error costs they save. In the
end, the Article uses the enforcement cost approach to suggest two reforms
to trademark law - the broader acceptance of disclaimers especially in
merchandising rights cases, and the abolition of trade dress protection.
Keywords: Intellectual Property, Trademark, Enforcement Costs, Trade Dress
JEL Classifications: K11, K42
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Robert Bone Contact Information
rbone@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-4421
SSRN Site:
http://www.ssrn.com/abstract=560462
Suggested Citation
Bone, Robert G., "Enforcement Costs and Trademark Puzzles,"
Virginia Law Review, Forthcoming
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