Document Type


Publication Date

Spring 2012


Lawmakers in developed and developing countries are expanding legal protections for trademarks – words, combinations of colors, signs, letters, numerals, figurative elements and designs meant to convey the origin and quality of firms’ goods or services. The purported rationales underlying trademark protection are promotion of competition and reduction of consumers’ information costs. Trademark law promotes competition by giving trademark holders an incentive to invest in the quality of goods or services and then associate that quality with a relatively easy-to-identify brand, mark or logo. The law punishes private actors who attempt to free-ride on the goodwill built by the trademark holder by counterfeiting or infringing upon the trademark. Consumers benefit because they are able to select products or services on the basis of these brands, marks or logos, reducing the costs of comparing products, researching third-party evaluations or otherwise informing themselves about which product or service will best fit their needs. Although trademark law developed in order to protect fair competition and consumer expectations, trademark proprietors increasingly use their new legal protections not only against private competitors but against the state for regulations intended to protect consumers from misleading information, warn them of product risks or educate them as to product qualities. These claims do not originate with, nor are they limited by, the theoretical purpose of trademark protection to ensure fair competition between economic players and secure inexpensive information for consumers. Instead, these claims are based on private property theories equating trademarks with more traditional forms of real and personal property. Trademark holders regularly dispute the boundary for legitimate regulation and demand compensation for mandates that encumber or “take” a trademark’s value. This Article outlines a trademark-specific condemnation regime which requires that trademark holders show that regulations uniquely affect product distinction before entitling them to compensation for a regulatory taking.



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