A New Theory of Trademarks

The economic approach to trademark law has reigned supreme for almost two decades. Yet few have critically examined the theory. This article seeks to do just that. The economic approach has stripped trademark philosophy of much of its inherent flexibility and normative depth.

At its core, trademark law provides a normative code of proper business conduct. This concept-which I call "integrity"-is at the heart of trademark jurisprudence. Indeed, trademark law has always been a rich and normatively driven body of law, with deep common law roots and traditions. It is precisely those qualities-currently being eroded away by courts and scholars alike-that have permitted trademark law to effectively deal with more than 100 years of diverse factual patterns and remain not only relevant but also central to our system of commerce.