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2010 BYU L. Rev. 1425 (2010)
Brands, Competition, and the Law

handle is hein.journals/byulr2010 and id is 1441 raw text is: Brands, Competition, and the Law Deven R. Desai* and Spencer Waller Brands matter. In modern times, brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Coca-Cola, Nike, Google, Disney, Apple, Microsoft, BMW, Marlboro, IBM, Kellogg's, Gucci, and Virgin are all large companies, but they are also brands that present powerful, valuable tools for business. Business is fully aware of that power and value. Contrary to the law's conception of trademarks, brands are used to indicate far more than source and/or quality. Indeed those functions are far down on the list of what most businesses want for their brands. Brands allow businesses to reach consumers directly with messages regarding emotion, identity, and self-worth, such that consumers are no longer buying a product but buying a brand. Businesses pursue this strategy to move beyond price, product, place, and position and create the idea that a consumer should buy a branded good or service at a higher price than the consumer might otherwise pay. Branding explicitly contemplates reducing or eliminating price competition, as the brand personality cannot be duplicated. In addition, this practice can be understood as a product differentiation tactic that allows a branded good to turn a commodity into a special category that sees higher margins compared to the others in that market space. In sum, brands have important effects on competition and the marketplace. Given that both trademark law and antitrust law address business competition, one might expect them to address brands as they fit into each doctrine's areas of concern and that together trademark and * Visiting Fellow, Center for Information Technology Policy, Princeton University; Associate Professor, Thomas Jefferson School of Law (on leave). As of this printing, Professor Desai is Academic Relations Manager at Google, Inc. The views, opinions, and statements in the work are solely the authors' and in no way reflect Google's views or positions. ** Professor and Director, Institute for Consumer Antitrust Studies, Loyola University Chicago School of Law. We both thank Robert Bone, Michael Carrier, Ed Felten, Brett Frischmann, Shubha Ghosh, Warren Grimes, Jens Grossklags, Robert Joseph, Mark Lemley, Mark McKenna, Matthew Sag, Daniel Savrin, Robert Steiner, and Joshua Wright for their comments and Anna Hamburg-Gal, Patrick Polcari, and Tommy Weber for their research assistance. We also received helpful comments from the participants at the 2009 Works-in- Progress, IP Conference, Seton Hall University, School of Law and workshops at Loyola University Chicago School of Law and the University of Tennessee College of Law. 1425