Jeremy Sheff Analyzes the Theoretical Underpinnings of Trademark Law

Associate Professor Jeremy Sheff’s latest article, Marks, Morals, and Markets challenges the conventional wisdom about why we enforce trademarks. For years, the majority of academics studying intellectual property have argued that the current shape of trademark law can be explained through the basic tools of law and economics. A smaller group asserts that trademarks are all about natural rights. Jeremy, who is quickly emerging as one of the leading new voices in IP scholarship, says that both those explanations are incomplete.  Here is the full abstract of his article, which is forthcoming in the Stanford Law Review:

Trademark law depends for its justification on economic arguments that cannot account for much of the law’s recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean “natural rights” theory that scholars have found even more unsatisfying. This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractarian tradition in moral philosophy, I develop and apply a new theoretical framework to evaluate trademark doctrine. I argue that this contractarian theory holds great promise not only as a descriptive and prescriptive theory of trademark law, but as a framework for normative analysis in consumer protection law generally.

For those looking to explore more of Jeremy’s work, you can find links here.

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