What Anti-Dilution Law Should Learn from the Informative View of Advertising

A trademark is a legally protectable name, word, symbol, design or combination that designates the manufacturer of a product or a service. Trademarks reduce search costs for the consumers as long as it is a reliable source of information concerning the source of production. It is often associated to advertising since they both convey information concerning the quality of the good or service on which is appended a brand. Therefore the rationale for trademarks law is: conveying product information to consumers , encouraging firms to maintain, even improve the quality of their products, and remedying intentional deception. All are connected to the quality of the product information available to consumers. So far, state allocation of property rights for trademarks has not be considered as much controversial as patents or copyrights since it does not create a monopoly power on product. Nonetheless, we have doubts about the economic rationale bases of expansions of trademarks law. More precisely, we might be confronted to the same difficulties as for the protection of other intellectual property rights: the optimal breadth and duration of legal protection. The expansion in the scope of trademarks law over the past thirty years shows that confusion is not any more necessarily the central aspect of trademark doctrines. For instance the concept of “dilution”, we are dealing with in this paper, relies upon a potential loss of the trademark distinctiveness, no more on the likelihood of confusion. By protecting trademarks over its informational functions, trademark law aims at protecting the goodwill attached to a brand. Anti-dilution law protects this strong distinctiveness in order to prevent misappropriation of the goodwill. In other words, it aims at protecting advertising endeavours in attaching consumers to the brand. Nonetheless, without risks of consumers’ confusion, it does not consider advertising in its informational role but rather in its capacity to create brand loyalty.