The Ethics of Unbranding

Abstract

This Essay explores the ethical implications of the phenomenon of “unbranding” that has recently been discussed in popular and scholarly literature. It compares two extant definitions of unbranding and examines each under alternative ethical theories of trademark law, specifically deontological and consequentialist theories. With respect to each of these theories, the Essay examines the ethical questions raised by the existence of asymmetric information between brand owners and consumers. This includes asymmetries not only with regard to information about products, but with regard to information about consumer decision-making processes. The latter asymmetry presents conflicts between deontological and consequentialist conclusions regarding the ethics of unbranding, requiring that one system be preferred over the other. The Essay concludes by arguing that consequentialist theories provide the most conventional approach to the problem of unbranding, but that the potential sense of dissatisfaction with consequentialist prescriptions regarding unbranding suggests that there may be an opening for a novel, autonomy-based deontological approach to trademark theory.

Keywords: Trademark, Unbranding, Deontology, Consequentialism, Consumer Markets