Consumer Law

Reading list: trademarks as false advertising

By Rebecca Tushnet

I saw this paper presented a few weeks back. Here's the abstract:

This article explores an unnoticed aspect of trademark law which in some circumstances constitutes a license to cheat. Trademark law protects consumers against the seller who passes off his product as another?s (interbrand fraud). But it does not protect consumers from a seller that uses its own trademark to misrepresent its own product (intra-brand fraud). False advertising law protects consumers against intra-brand fraud, but only if the seller uses a descriptive term. This is the license to cheat: If a seller uses a non-descriptive mark to sell its product, no cause of action arises under the law of false advertising (because the mark is not descriptive) or trademark law (because there is no passing off). The article explores how an alternative conception of the economic function of trademarks can be used to understand the informational value of trademarks and their advertising function. After identifying circumstances appropriate for legal intervention the article concludes with a proposal for a new interpretation to the Trademark Act that addresses this troubling situation.

Full post as published by 43(B)log on March 18, 2009 (boomark / email).