Trademarks and brands can be studied together as related entrepreneurial processes and, therefore, there are key works and common literature in both fields. Notwithstanding this, the purpose of this special issue is to highlight specific research on trademarks as the more tangible aspect of the brand. In fact, trademarks have been mainly studied in four fields: economics, legal research, business studies, and business history.
Economics, law, and business studies
As with many aspects related to intellectual property rights (IPRs), with very few exceptions, trademarks did not capture economists’ attention until the late 1980s and early 1990s. The earliest attention was by Andreas Papandreou in 1956, who, in a simple manner, inquired into the economic effects of trademarks and their monopolistic character.5 Two decades later, an interesting but largely unnoticed work by Surendra Patel appeared on the political economy of trademarks from the field of development economics. In 1979, Patel, an economist and director of the Technology division of the United Nations Conference on Trade and Development, edited a remarkable special issue of World Development that focused on the trademark system in developing countries.6 Especially concerned with the hundreds of thousands of foreign-owned trademarks of all classes of consumer goods, including pharmaceutical products, contributors to that special issue provided analyses and discussions on the role of trademarks in international economics, their use by corporations, their distinct economic effects on First and Third Worlds, and on related legal issues.7
Despite these interesting analyses, trademarks as a field was not established for eight more years, until 1987, by the Chicago school of economics, not least owing to the influential work of William Landes and Richard Posner.8 George Akerlof had previously written on trademark/brands’ relevant roles in counteracting the effects of quality uncertainty in the markets,9 and Landes and Posner continued from that point. The theory was that trademarks are informational for consumers and markets, and, therefore, trademark laws would promote economic efficiency. However, in a certain sense, economic theory has traditionally considered trademarks as the ugly duckling of IPRs. From economics of information and signalling to property rights and transaction cost theories, trademarks have been always analysed as private goods or as idiosyncratic investments and quality indicators, hardly related to innovation or creation processes and far from public goods theory. Therefore, trademarks have held little interest in comparison to patents and copyright.10 Few theoretical developments have occurred since 1987, and those that have generally are within the same framework.11 Even revisionists who swim against the tide on the economics of IPRs, such as Michele Boldrin and David Levine, exclude trademarks because they are ‘different in nature than patents and copyrights’.12
Only recently have a few scholars who are specialists both in economics and law, such as David Barnes, claimed that trademarks can be analysed as impure public goods with simultaneous rivalrous and nonrivalrous uses by suppliers and consumers. Such ‘referential use’ of trademarks by consumers means that there could be market failures and nonoptimal production/use of trademarks that related laws usually do not address. This means that, as with patents and copyright issues, more government intervention may be required to provide an optimal amount of information about products and their sources.13 Although this newer approach has links with the economics of IPRs, the neoclassical view of trademarks has nevertheless prevailed.14 Trademarks are normally treated as private goods that reduce search costs and ensure quality, although the growth of branding has also led to new economic functions, such as the protection of intangible outputs (meanings, identity, or status),15 which may introduce other theoretical frameworks and perspectives, such as those from behavioural economics.16
Private property rights have also been a guideline for a key field in trademark studies: legal research. In fact, IPR practitioners and law scholars were among the first to be interested in trademarking, for two obvious reasons: (1) the analysis of legislation and its evolution can shed light on its effects on business and commercial practices; and (2) there are few better ways to understand the actual work of an institution than through case laws and court precedents. An understanding of these two can lead to new legal proposals that can improve, modify, or even abolish laws or parts of them under certain circumstances.17 These reasons are behind the first contributions of trademark practitioners, attorneys, and law scholars published in specialised periodicals (such as the Journal of the Patent Office Society and the Trademark Reporter) as well as in academic law journals between the 1960s and 1980s.18
The influence of economics, and especially of the Chicago school, on trademark research was rapidly extended in studies by legal scholars. Certainly, the search-costs, procompetitive use, and economic-efficiency theories of trademarks have impacted law doctrines and still have strong advocates.19 Nevertheless, starting in the mid-1990s, legal scholars began to question, qualify, and criticise such dominant accounts; to highlight trademarks’ monopolistic side,20 and enforcement costs21; and to note other trademark uses and abuses that influenced trademark doctrines.22 Moreover, certain scholars claim that trademark laws were never specifically designed to protect consumers or encourage information availability in the markets, but were to protect producers from illegitimate copies of their products.23 These scholars consider that the dominant economic approach to trademarks is overrated, and call for new theories.24 This criticism has led to scholars exploring new aspects of trademarks,...
