Abstract

The "monopoly theory of trademarks" would "antitrustize" trademark law by incorporating antitrust legal precedent, economics, policies, reasoning, and terminology. The theory is comprised of six interrelated postulates contained in trademark law and scholarship. The postulates are (1) trademarks are monopolies; (2) trademark monopolies are like illegal antitrust monopolies because both harm competition; (3) trademark law is like antitrust law because both value competition; (4) trademark law is like antitrust law because both apply economic methodology to product markets; (5) an antitrust lens can help one understand trademarks and trademark law; and (6) an antitrust lens can help one decide whether a trademark is functional, generic, or infringed. The sixth postulate "antitrustizes" important recurring trademark issues. It is advanced by numerous legal scholars, and has gained traction in the courts.

This Article examines each of the postulates to determine whether the monopoly theory of trademarks is robust, consistent with what we know about trademarks and their effects in product markets, and capable of enhancing our understanding of what currently is uncertain or unknown; or whether it is a bust, failing to meet these criteria. Parts II through VI of the Article evaluate the postulates. Part VII concludes that the monopoly theory is a bust.

Document Type

Article

Publication Date

2005

11-2-2011

Notes/Citation Information

Journal of Intellectual Property Law, Vol. 13, No. 1 (2005), pp. 137-178

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.