Is Consumer Protection Still a Primary Focus of Trademark Policy?

The IPKat blog has an informative post today about “the recurring assertion that consumer protection is a bedrock of trade mark protection.”  The article challenges the longstanding and widely-accepted view that consumer protection is an important, if not one of the most important, policy considerations underlying trademark law.  The question stems, in part, from the evolving nature of the interests recognized in trademarks beyond their function as identifiers of source.  For example, Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals and a noted legal commentator, has observed that “in our culture, trademarks are doing all kinds of work they weren't originally meant to do,” and identifies “four different kinds of interests implicated by giving trademark owners a more extensive property right in their marks: moral, utilitarian, goodwill, and free expression.”  Similar observations have been made by commentators in the European Union, one of whom opined that “[i]n the EU, the understanding is that trade marks are IP assets, their protection serving their owners’ interests.  They do NOT protect consumers, we have other laws for achieving that.”  As Judge Kozinski concluded, “[i]t’s critical that we consider all the interests at stake and weigh those interests by reference to current reality, not according to rules made up at another time to deal with another reality.  Trademarks, trade names, logos, and the other symbols of commerce have evolved.  The law must evolve with them.”  Read the full article here.

 By Moogsi (Own work) [Public domain], via Wikimedia Commons.

By Moogsi (Own work) [Public domain], via Wikimedia Commons.

Reposted from The IPKat.