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Article
Trademark Monopolies
Emory Law Journal
  • Glynn S. Lunney, Jr, Texas A&M University School of Law
Document Type
Article
Publication Date
3-1999
ISSN
0094-4076
Abstract

Since 1742, when Lord Hardwicke seemingly equated trademark protection with monopoly in one of the first trademark cases, until the mid-1950s, concerns that trademarks represented a form of illegitimate monopoly effectively constrained the growth of trademark protection. In the twentieth century, Edward Chamberlin became the leading proponent of the trademark as monopoly view with the publication of his work, The Theory of Monopolistic Competition, in 1933. In his work, Chamberlin argued that a trademark enabled its owner to differentiate her products and then to exclude others from using the differentiating feature. By doing so, trademark protection can effectively cede control over distinct product markets to individual producers and thereby generate for trademark owners the downward sloping demand curve of a monopolist, with its associated monopoly rents and deadweight losses. Although Chamberlin himself recognized the need for product differentiation and rejected the supposed ideal of the perfect competition model, his work became a common rallying point for the trademark as monopoly argument. During the legislative debates leading to the Trademark Act of 1946, his work served as a basis for the Justice Department's opposition to broad trademark protection.

Publisher
Emory University School of Law
Disciplines
Citation Information
Glynn S. Lunney. "Trademark Monopolies" Emory Law Journal Vol. 48 Iss. 2 (1999) p. 367 - 487
Available at: http://works.bepress.com/glynn_lunney/35/