Trade Marks and Brands

Brands are the most valuable assets owned by many companies and as consumers we inhabit brand-saturated environments. Trade mark law provides the legal underpinnings for the protection of brands. However significant tension remains between (i) the 19th century understanding of marks as indications of commercial origin, helping consumers to find what they want and (ii) the contemporary significance of brand image as a valuable form of property, which exists only in consumers’ minds. This half-option will interrogate this tension.

The course will be structured around key elements of the registered trade mark system, using (EU-influenced) UK trade mark law to set up the basic concepts and rules. The first half of this course will outline registered trade mark protection – what sorts of signs can be registered, what counts as infringement and the defences available. The second half of this course will explore cutting edge aspects, such as AI and trade mark law; publicity or image protection rights in the age of deepfakes; branding and sustainability issues (such as eco-certification or greenwashing and repair/recycling); and the liability of platforms and online intermediaries for counterfeits.

The teaching materials include black letter or doctrinal sources, but also secondary literatures to facilitate critical engagement. This course draws on insights from economic history, psychology, marketing and other fields. For instance, the very existence of trade mark law is often justified by reference to reducing consumer search costs: that consumers benefit from being able to rely on certain signs to indicate trade origin, such that they can more easily and confidently locate the goods and services they wish to purchase. But this rests on various assumptions about consumer behaviour and perceptions, many of which take place at an unconscious level. When we look at the rules of trade mark law, to what extent are they really concerned about, or informed by, actual consumer reactions? And to the extent they are not – is that a problem?

Assessment is by way of an examination.