Trademark Law and Social Norms

Professor Graeme Dinwoodie, LL.M., J.S.D., Professor of Law, Associate Dean, and Director of the Program in Intellectual Property Law, at Chicago-Kent College of Law, Holder of a Chair in Intellectual Property Law at the University of London, Queen Mary College, November 2005

Scholars and courts are insufficiently attentive to a lawmaking choice that crucially shapes the content of trademark and unfair competition law, namely, whether trademark law should simply react to consumer behavior or whether instead the law should proactively seek to influence and construct consumer (and producer) behavior. Stated differently, what is the relationship between trademark law and the social norms by which trademark law purports to be guided? Should trademark law be structured reactively to protect whatever consumer understandings or producer goodwill develops, or should it proactively seek to shape the ways in which consumers shop and producers sell or seek to acquire rights, thus ordering how the economy functions?