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What Do We Know about Trade Mark External Costs?
IP Section, Society of Legal Scholars Annual Conference (2012)
  • P. Sean MORRIS, University of Helsinki

What do we know about the external costs of trade marks? Are such external costs driving competitiveness in the modern economy, or are they being a source of hindrance to innovation and competitiveness? Are there effects of trade marks (brand spillover) on issues relating to antitrust law? These are some of the issues that will be raised in this discussion on trade marks’ external costs. The discussion will relate to the economic concept of external economies (externalities), its transposition onto the legal plane and its relation to trade marks. The discussion is critical in nature. It is critical for being selective to focus exclusively on external economies and the relation to the trade mark regime in the European Union (EU). This critical selection obviously places the trade mark regime into the debate on whether antitrust law is able to or actually has any effect on trade marking activities. In addition, the discussion attempts to discover and analyse most of the treatment of trade marks’ externalities and whether, in that treatment, the external costs were detriment to the normative foundation of trade mark law. The chapter will use comparative advertising and dilution as an example of trade marks’ external costs. Though the chapter may serve as a resurrection of the externality doctrine, it seeks to address (descriptively) some of the legal policy implications that were overlooked during the rise of the theory of externality, in particular comparative advertising and its trade mark law and policy implications.

  • Trade Marks,
  • Externalities,
  • Free Riding,
  • Dilution,
  • Comparative Advertising
Publication Date
Fall September 10, 2012
Citation Information
P. Sean MORRIS. "What Do We Know about Trade Mark External Costs?" IP Section, Society of Legal Scholars Annual Conference (2012)
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