Trademarks have a dual purpose: to prevent consumer confusion by preventing any company from usurping the identity of another firm; they also are private property rights that secure a company with goodwill and brand equity.
Trademarks have lately been controversial since the scope of trademark property has expanded a lot in recent times. Some trademarks can even legally become “famous”. When a mark is legally recognized as famous it can stop other users of the mark even if there is zero consumer confusion. This has created problems for companies in totally different markets and contexts who try to use a similar mark that no one would confuse with the famous mark, e.g. using rolls royce for a dry cleaning service. It has also created problems for people who try to comment on a brand through parody or social commentary (see discussion thread below dealing with the Barbie). Owners of famous marks can potentially censor others who tarnsih the mark in any way.
The other controversial development is the use of trademarks to cover sensory perception, e.g. strange trademarks, where companies secure a property right to things like sounds, colors, shapes and motion. That was the subject of my recent lecture, and a Wall St. Journal article I wrote last year about how Apple received a shape trademark for the iPod. If you would like to see the recent lecture slide show please click here:
The Shape of Things to Come: Non-Traditional Trademarks from the iPod to the Chippendale Dancers
I’d love to hear about what your thoughts are on trademarks!
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