Document Type

Book Chapter

Publication Title

Cambridge Handbook on International and Comparative Trademark Law

Publication Date

2020

First Page

452

DOI

https://doi.org/10.1017/9781108399456

Abstract

(Excerpt)

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.

Comments

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).

Available at: https://www.cambridge.org/core/books/cambridge-handbook-of-international-and-comparative-trademark-law/89635A9E3B1BEF12EFC92D0405589D14

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.