Brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. In the business world it is common wisdom that brands have important effects on competition and the marketplace. Yet the two areas of law most concerned with competition – trademark and antitrust – have not yet fully come to grips with the importance of branding.
In simplest terms, the law conflates trademarks and brands. Those scholars who contend that this is a mistake argue that brands are seen as indicating source and quality but that the other functions of brands are missed. Marketing and consumer literature brims with studies about the way brands use identity, emotion, and behavioral levers to compete beyond price. A brand-loyal customer may pay a premium for a brand for reasons other than quality and price. If one's brand cannot be copied, one's product may be so differentiated that competitors cannot compete and commodities such as wheat can be sold at higher margins than would otherwise be possible.
Until recently, these effects were lost in trademark and competition law (antitrust) discussions. Part of the problem flows from reliance in both Europe and the USA on price theory for both intellectual property and antitrust law. Embracing other social science perspectives should bridge the gap. Current brand literature tends to describe competitive advantages a brand can offer, but the welfare and consumer effects are less clear. At first, understanding brands may challenge current models of competition law, as it may not offer the seemingly crisp outcomes regarding whether preferences and related market results are endogenous or exogenous. Nonetheless, given the importance of branding, the explicit desire to use brands to compete, and the way in which brands evade price theory, there is a vigorous debate regarding the extent to which competition law and trademark law must delve into these literatures.
Thus the goal of this volume and our broader project on the nature of brands is to bring together scholars and practitioners from all of the relevant disciplines to learn from each other and explore what would constitute an appropriate legal framework for the treatment of brands in the modern economy.