Thursday, September 5, 2019
P. Sean Morris, University of Helsinki - Faculty of Law discusses Intellectual Property for Breakfast: Market Power and Informative Symbols in the Marketplace.
ABSTRACT: This paper continues to examine an important question: are trademarks a source of market power, or, when, put differently, are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars, however, by raising it and presenting some scenarios that can provide answers, it is hoped that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest in addressing this question, I explore in this paper the proposition that creative deception and the wealth generating capacity of trademarks are (unorthodox) elements that when considered against the backdrop of case law, then, not only is creative deception a part of the process of product differentiation but also trademarks are in fact an antitrust problem. Some of my earlier arguments are set out in the previous papers, and one aim of the current paper is to explore the implication of product differentiation for evading antitrust rules.