Foreword

Foreword

Description

Because they interfere with creativity in the name of promoting creativity, intellectual property rights are perennially puzzling. But no law is as mystifying as the legal doctrines that recognise exclusive rights in brand names and celebrity reputations. Copyrights and patents protect finite advances – a book, a song, an invention—that are directly attributable to a particular innovator or team. The rights endure for limited periods of time. They can be critical to protecting those who invest in innovation from free riders. Trade mark law is somewhat more problematic. Protection lasts indefinitely. The audience can play as important a role as the producer in vesting marks with meaning and value. But classically, trade mark law has a benchmark: it is triggered when unauthorised use creates a likelihood of consumer confusion. Furthermore, recognizing trade mark protection serves clear public purposes: the exclusive right to a mark lowers consumer search costs and gives producers incentives to maintain quality. The protection of brands and reputations is quite different. It is fraught with all of the problems of trade mark law—value resides partly in the eyes of the beholder and the right can endure forever. Here, however, the nature and boundaries of the advance are unclear and the social value of the protection is ambiguous. The underlying rationale appears, as in trade marks, to depend on a search—cost idea—the notion that if the consumer likes the way that X does A, then she will be equally pleased with the way it does B. But why should Calvin Klein’s underwear be as nice as its outerwear? What does Ashton Kutcher really know about cameras? Is George Clooney genuinely a specialist in watches and cars; coffee and liquor? Isn’t it misleading to imply that the competence of a company or a celebrity transcends the core business in which that company or celebrity is engaged? Instead of dispelling consumer confusion, these rights appear aimed at fomenting it. There are other problems as well. Celebrities do not need incentives to invest in their own reputations. Brand protection can stifle competition, for the stronger the carry-over value of an old mark in a new market, the harder it is for other enterprises to enter that market and compete. More disturbingly, the criminal docket suggests that when some people say they’d ‘kill’ to own a particular brand, they come close to really meaning it. Nor do rights over brands and reputation have obvious jurisprudential roots. They borrow from the theories that animate the laws of trade mark, unfair competition, privacy, defamation and copyright. Or, as suggested in this volume, perhaps the impulse to protect derives from morality, religion, romance or magic. Yet, clearly, branding is of growing significance to business enterprises. It has given birth to its own industry, bred a cadre of specialists, and convinced many a court. The strategy is spreading to all parts of the globe; it’s been taken up by those who wish to protect the images of foodstuffs, artisanal products and traditional knowledge. Hence, the importance of this book. Since reputations transcend national boundaries, global harmonisation is highly desirable. But before international rules can be developed, the scope of the right needs more precise delineation. Its justifications need to be identified and examined critically. The costs and benefits of protecting brands and celebrity reputations must be compared in earnest and the contours of the right must be tailored to balance the needs of commerce against the social costs of privatising new swaths of the knowledge ecosystem. This book takes an interdisciplinary approach to these questions, collecting the knowledge of experts in business, economics, law and cultural studies; professors and practitioners; doctrinalists, theoreticians, historians and empiricists. Most intriguingly, it focuses on the Asia Pacific, a region of increasing commercial importance, but whose law is largely unknown elsewhere; a region where legal doctrine is influenced by the United States and Europe, but leavened by such diverse sources as Islam, Confucius and traditional practice. These materials examine branding and reputation law in places where it is emerging (Indonesia, Malaysia, Hong Kong, Singapore) in light of the experience of countries where it is of longer standing while still evolving (the United States, Australia, New Zealand). The book illuminates the range of policy choices available. As such, it is sure to influence the shape of the ultimate transnational regime.

Source Publication

The Law of Reputation and Brands in the Asia Pacific

Source Editors/Authors

Andrew T. Kenyon, Ng-Loy Wee Loon, Megan Richardson

Publication Date

2012

Foreword

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