Coordinating Extensive Trademark Rights and Competition Policy

Abstract

A trademark can be not only a word or logo, but also a color, sound, three-dimensional object, and many other nontraditional items. Corporations are increasingly seeking nontraditional trademark protection instead of or in addition to traditional patents and/or copyrights. They are also enforcing both traditional and nontraditional marks more aggressively and in ways that may lead to significant foreclosure effects. This working paper argues that these trends may raise serious competition policy concerns that should play an important role in the evolution of trademark law. For instance, trademark registration and enforcement should be subject to the same antitrust constraints as other “ordinary” kinds of business conduct.