The Culture of Trade Marks: An Alternative Cultural Theory Perspective

Abstract

This article explores the often untapped relationship between trade mark law, language and culture from a cultural theory perspective. Of the few works that employ cultural theory as an interpretive background, there has been an overwhelming rejection that private rights in trade marks should be recognised beyond the current state of the law. Some cultural theorists even suggest that existing trade mark protection goes too far. This article attempts to curb this academic tendency by showing that trade mark rights might not be as harmful to culture and cultural expression as perhaps first thought. In fact, it is argued that a carefully adapted trade mark dilution right might satisfy a cultural public interest in facilitating speech by preventing the dilution of a trade mark's expressive function.

Keywords: trademarks, language, culture, cultural theory

JEL Classification: K00, K11, K10