Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP

Lemley, Mark A.; McKenna, Mark

doi:10.2139/ssrn.2038039

Cited by 7 publications

(8 citation statements)

References 16 publications

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“…It defines the author's market and existence of domains beyond that market, which may in turn be defined and organized in terms of distinct markets (each distinguishable variation on a source work may become a new, marketable work) or not (so that each distinguishable variation is, in effect, un-owned). With each new commodity comes a new market or markets, institution, or set of practices, each bounded lightly and, given the necessarily somewhat loose understanding of the idea of a market (Lemley and McKenna 2012), by the work itself.…”

Section: Platonism and Original Work And New Workmentioning

confidence: 99%

IP Things as Boundary Objects: The Case of the Copyright Work

Madison

2017

Laws

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Abstract:The goal of this article is to initiate the exploration of the meanings and functions of the things of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. The article focuses firstly on the example of copyright work. Relevant challenges are both technological and conceptual, because these things blend the material and the immaterial. Works are neither as clearly defined nor as clearly limited as copyright law often suggests they are. To explain and justify that proposition, the article borrows from information science literature exploring boundary objects, which are stable physical and intangible things that align distinct but overlapping communities of practice in flexible ways, via interpretive openness. The article shows that the meanings of the work in copyright law can be unified conceptually in the sense that the work operates as a boundary object across a number of different legal and cultural divides. This view of the work clarifies the distinct status of relevant communities and practices in copyright but also bridges them in copyright's construction and governance of culture. None of the boundaries represented in these boundary objects is fixed or impermeable. Their very dynamic and sometimes porous character is precisely the governance role illuminated here.

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Section: Platonism and Original Work And New Workmentioning

confidence: 99%

IP Things as Boundary Objects: The Case of the Copyright Work

Madison

2017

Laws

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“…Confusion matters only when it causes harm (Bone 2004(Bone , pp. 2147(Bone -2149Lemley & McKenna 2010a). This means that the trademark-related costs of a functionality bar must include not only the probability of confusion, but also the social harms from confusion when it materializes.…”

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confidence: 99%

“…The functionality doctrine is not the only tool available to address public domain concerns. Since the 1980s, courts have expanded types of actionable confusion and imposed liability rather broadly in trade dress and other types of trademark cases (Bone 2012;Lemley & McKenna 2010a). Some of these expansions are highly problematic and should be cut back, a point that I have discussed at length elsewhere (Bone 2012(Bone , pp.…”

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confidence: 99%

“…First, the court must define the relevant product market, and second, it must assess the adequacy of available alternatives in light of the effect on competition in that market. The first inquiry is complicated, and courts frequently sidestep it (Lemley & McKenna 2012).…”

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confidence: 99%

“…149 In antitrust, market definition depends on cross-elasticity of demand and supply, which raises a number of complicated issues and in any event might not be the right test for trademark law (Lemley & McKenna 2012;Bone 2004Bone , pp. 2175Bone -2181.…”

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See 2 more Smart Citations

Trademark Functionality Reexamined

Bone¹

2015

Journal of Legal Analysis

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The functionality doctrine in trademark law bars protection for some, but not all, sourceidentifying product features-so-called trade dress-that contribute to a product's functional performance. Despite the doctrine's lengthy history, its critical role in promoting intellectual property policies, and the considerable attention devoted to it in recent decades, courts and commentators still disagree about what functionality means, the reasons why functional marks should not be protected, and how far the functionality bar should extend. This confusion is due largely to a lack of clarity and rigor at the normative level. This article seeks to remedy the deficiency. It traces the history of the functionality doctrine, critically analyzes its policy foundations, and outlines an analytical approach for designing optimal functionality rules.

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Dilution Versus Unfair Advantage: Myths and Realities

Basma

2021

IIC

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Recent developments in the commercial marketplace have rendered the classification of trademarks as mere tools for remedying information asymmetry and assuring quality inaccurate. The value of trademarks as communicative tools has increased, and they are now being used by their owners to transmit images, value propositions and associations to consumers in order to drive purchases. However, while this new function of trademarks is a reality that can hardly be ignored, finding a convincing normative justification to legally support its integration into the trademark system remains problematic. Thus, building on the normative justifications advanced by the European Union (EU) to justify extended trademark protection, this paper evaluates the dilutive harm theory, including blurring and tarnishment, in addition to the misappropriation rationale. The paper reviews EU case law in this respect and sheds light on the current muddled state of law in dealing with extended trademark protection. Based on this analysis, the paper offers a workable framework which can be utilized by courts to address cases related to modern trademark functions. The paper concludes that the misappropriation rationale should be the principal ground for extending trademark protection, and that harm resulting from blurring and tarnishment should act as an ancillary for misappropriation claims.

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Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP

Cited by 7 publications

References 16 publications

IP Things as Boundary Objects: The Case of the Copyright Work

IP Things as Boundary Objects: The Case of the Copyright Work

Trademark Functionality Reexamined

Dilution Versus Unfair Advantage: Myths and Realities

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