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Book Chapter

Publication Title

Cambridge Handbook on International and Comparative Trademark Law

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The anti-misappropriation principle, at its core, is that it is wrongful and therefore actionable for a competitor to gain a commercial advantage from the efforts of another, even if that advantage does not directly harm the person whose efforts have been misappropriated. This principle appears to be a deep theoretical commitment of modern intellectual property law. And nowhere in intellectual property law is the anti-misappropriation impulse more directly implicated than in the context of conspicuous consumption.

As I have written about elsewhere, modern consumers engage in conspicuous consumption of branded goods to signal social affiliation and identity, and to claim their place in the socio­ economic hierarchy of late capitalism. But the expressive effect of such consumption may be compromised by indiscriminate copying of the goods that serve as tokens of that expression. Protecting in-groups' tokens of social affiliation and rank against unauthorized appropriation by outsiders is therefore a necessary condition of successful conspicuous consumption. Regulation of access to such socially expressive goods - particularly fashion products - was once the function of elaborate sumptuary codes based on de jure social status. Today however, conspicuously consumed signals of social identity and status are rationed through markets, aided by an unlikely legal regime: trademark law.


Jeremy N. Sheff, Misappropriation-Based Trademark Liability in Comparative Perspective, in THE CAMBRIDGE HANDBOOK OF INTERNATIONAL AND COMPARATIVE TRADEMARK LAW (Irene Calboli & Jane Ginsburg eds., Cambridge Univ. Press 2020).

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