Revisiting the philosophical foundations of trademarks in the US and UK in the light of the economic-social planning theory

• Main Author: Naser, Moh'd Amin
• Other Authors: Rahmatian, Andreas
• Published: University of Leicester 2009
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.551882

This thesis challenges the philosophical foundations of current trademark systems. It takes the trademark legislations of the United States and the United Kingdom as case studies for the argument of this thesis. In proving the hypothesis –that the theoretical foundations of trademark systems should be revisited– the thesis argues that the process of trademark creation should be transformed to the more practical and realistic proposition of “co-authorship” of trademarks by both the public and trademark owners. Accordingly, the thesis develops the “Economic-Social Planning justification”, which departs from the economic argument that trademarks reduce consumer search costs, and then proposes that trademarks should be formulated in a manner which helps foster a just and attractive culture. Trademarks are thus seen in this thesis as source and origin identifiers, rather than quality identifiers. This thesis advances a new argument insofar as it develops this origin function of trademarks into a modern concept, whereby this is considered as the only primary function of trademarks, and forms the rational basis for trademark protection. This opens the way for other secondary functions such as the quality, advertising and informative functions. More importantly, this thesis focuses on the often ignored role of the public and their rights in trademarks. As such, the most equitable approach, on the basis of the proposed justification, lies in the adoption of the confusion rationale for trademarks protection, not the dilution individualistic and monopolistic rationale. The two jurisdictions of this thesis prove not only that the problem lies in the adoption of dilution, but also in the wide application of the confusion rationale. They also prove adverse effects over the rights of the public in terms of using trademarks in cultural and expressive contexts (for example in the form of trademark parody), thereby threatening the principles of freedom of expression as a human fundamental right.