Trade Dress Rights as Instruments of Monopolistic Competition: Towards a Rejuvenation of the Misappropriation Doctrine in Unfair Competition Law and a Property Theory of Trademarks

By Apostolos Chronopoulos*

*LLM (Lond.); LLM Eur. (Munich)

Excerpt from Trade Dress Rights as Instruments of Monopolistic Competition: Towards a Rejuvenation of the Misappropriation Doctrine in Unfair Competition Law and a Property Theory of Trademarks, 16 Marq. Intell. Prop. L. Rev. 119 (Winter 2012)

I. Introduction

This paper examines the dogmatic implications of the well-established principle that trademark rights are nothing but a part of unfair competition law. It begins by studying the historical development of trademark protection, which reveals that the grant of an exclusive right was not only directed at combating consumer deception, but also a means to protect goodwill as an intangible value of the trademark holder. In the course of legal development, the notion of protecting the public from various forms of consumer confusion became the dominant justification for recognizing and enforcing trademark rights, thereby suppressing trader interests viably protectable through a system of trademark protection based on the property concept. The interest of the trademark holder to exploit his goodwill, even in distant markets and in the absence of any likelihood of confusion, was the subject of dilution laws, which were often seen as both an undesirable propertization of trademark doctrine that unduly restricted freedom of competition and as an exception to traditional trademark theory. 1 Nowadays, trademarks are used in competition for an array of purposes irrelevant to source identification. Traders make use of the system of trademark protection not simply because they seek to avoid goodwill destruction arising from consumer confusion but in order to capture goodwill in and of itself as an intangible value that generates demand and gives the right-holder the possibility to exercise market power. Trade dress claims are the most obvious example of that phenomenon. For example, making a claim under section ...

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