Famous Trademarks and The Rational Basis For Protecting Irrational Beliefs

Contrary to the traditional view, this article argues that mega-brands are neither economic evils nor limited to imparting information about the products they adorn. It also rejects the view that famous marks persuade “snobs” to “irrationally” pay more for the same physical product they could have purchased for less. Rather, it adopts the view that in purchasing a branded good, the consumer is actually purchasing a bundle of three products: a physical product, information about the physical product, and an intangible product, such as fame, prestige, peace of mind, or a pleasant feeling. This article explores the demand for the intangible product and its impact on pricing, welfare, and the strategies of consumers and producers. It concludes that under certain conditions one may witness the anomaly of an increase in both price and output. Further, contrary to conspicuous goods theory, this analysis shows that snobbism may occur in the traditional downward-sloping demand curves and is not limited to goods with conspicuous properties. A direct implication of this analysis is that mega-brands neither confer a monopoly nor foster price discrimination. On the contrary, they enhance competition in both the physical and intangible spheres. Further, the analysis provides a rational basis for anti-dilution law. Anti-dilution law - widely considered to protect producers and injure consumers - actually inures to the benefit of both groups. Finally, this analysis shows that even snobs are rational, and that there are sound economic justifications for the law’s unique protection of famous marks. Keywords: famous trademarks, mega brands, persuasive advertising, branding, intangible product, snobs, conspicuous goods, irrational consumers, social norms, anti-dilution, externality, intellectual property, price discrimination, tying, antitrust, psychological value
Reference :

14 Geo. Mason L. Rev. 605 (2007) (Lead Article)