Jessica Kiser, ‘Brands as Copyright’

Trademark law’s foundational purpose is to protect consumers from being misled about the source of a good or service. While trademarks are typically included within the larger concept of a company’s brand identity, brands are used for purposes other than assuring a consistent source for products. This article argues that brands should be reconceptualized under copyright law instead of their traditional treatment as an extension of trademarks. Numerous scholars have argued against the rapid expansion of trademark law that has created new grounds for liability for claims like dilution and post-sale confusion. This expansion of trademark law can be viewed as the result of trademark law’s attempt to protect the interests of brand owners. While intended to benefit brands, these changes to trademark law have had unintended consequences, many of which actually harm brand owners.

Marketers envision a brand as a story that unfolds over many marketing efforts, and this brand narrative offers consumers creative content with which to engage and adopt as part of their own self-identity. Brands invite consumer involvement in the brand development process in a way that is not contemplated, and is often prohibited, under trademark law. As such, a better approach to brands views them in a similar fashion to copyrighted works and fanfiction under copyright law. By recognizing the proper place for brands under copyright law, trademark law can reclaim its focus on protecting consumers, and brand owners will be better supported in their efforts to build strong, creative and engaging brands.

Kiser, Jessica, Brands as Copyright (2016). Villanova Law Review, Vol 61, No 1, 2016; Gonzaga University School of Law Research Paper No 2016-11.

First posted 2016-07-12 06:31:15

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