2008nasermaphd.pdf (1.59 MB)
Revisiting the philosophical foundations of trademarks in the US and UK in the light of the Economic-Social Planning Theory
thesis
posted on 2011-12-05, 13:30 authored by Moh'd Amin NaserThis thesis challenges the philosophical foundations of current trademark
systems. It takes the trademark legislations of the United States and the United Kingdom
as case studies for the argument of this thesis. In proving the hypothesis –that the
theoretical foundations of trademark systems should be revisited– the thesis argues that
the process of trademark creation should be transformed to the more practical and
realistic proposition of “co-authorship” of trademarks by both the public and trademark
owners.
Accordingly, the thesis develops the “Economic-Social Planning justification”, which
departs from the economic argument that trademarks reduce consumer search costs, and
then proposes that trademarks should be formulated in a manner which helps foster a just
and attractive culture. Trademarks are thus seen in this thesis as source and origin
identifiers, rather than quality identifiers. This thesis advances a new argument insofar as
it develops this origin function of trademarks into a modern concept, whereby this is
considered as the only primary function of trademarks, and forms the rational basis for
trademark protection. This opens the way for other secondary functions such as the
quality, advertising and informative functions.
More importantly, this thesis focuses on the often ignored role of the public and their
rights in trademarks. As such, the most equitable approach, on the basis of the proposed
justification, lies in the adoption of the confusion rationale for trademarks protection, not
the dilution individualistic and monopolistic rationale. The two jurisdictions of this thesis
prove not only that the problem lies in the adoption of dilution, but also in the wide
application of the confusion rationale. They also prove adverse effects over the rights of
the public in terms of using trademarks in cultural and expressive contexts (for example
in the form of trademark parody), thereby threatening the principles of freedom of
expression as a human fundamental right.
History
Supervisor(s)
Rahmatian, AndreasDate of award
2009-07-03Awarding institution
University of LeicesterQualification level
- Doctoral
Qualification name
- PhD