Marks are traditionally said to serve three functions that are separate from the goals of other forms of IP: source identification, advertising, and guarantee of quality. The story, however, that patents and copyrights incentivize creation and that trademarks do not fulfill that purpose does not withstand scrutiny. This Article argues that brands have evolved in such a way that they serve important incentivizing purposes of their own, and that trademark law influences their ability to do so. This Article identifies three generally neglected functions of trademarks. The first pertains to the creation of original, unique marks and brands in and of themselves. Indeed, this Article contends that marks and brands possess a fan base that engages in artistic and other appreciation similar to the enjoyment derived from copyrighted works. The second underexplored function of trademarks and brands is to combine with products and provide new hedonic experiences to consumers in a way that is qualitatively little different from experiences of copyrighted or patented goods. Third, and perhaps most controversially, trademarks and brands—in part, but not exclusively, through the creation of status goods—may incentivize socially desirable behavior such as hard work and productivity that may increase overall economic welfare. This Article thus seeks to restore, or rather construct for the first time, as a theoretical matter the stature of trademarks as a full member of the family of intellectual property. The conclusion results that any future changes to trademark law and policy must account for effects on the incentivizing functions of marks.
Irina D. Manta,
SMU L. Rev.