Document Type

Working Paper

Publication Date

3-6-2009

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Industrial Organization & Regulation eJournals; Entrepreneurship Research & Policy Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Private Law eJournals; LSN Subject Matter eJournals; ERPN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; ERN Subject Matter eJournals; Intellectual Property Law eJournals

Abstract

This Article explores an unnoticed aspect of trademark law which in some instances may constitute a license to cheat It shows that under certain circumstances a seller can use its own trademark to mislead its customers free from legal sanction in contexts where the same behavior would be sanctioned if the seller used other advertising media The Article then explores how an alternate conception of the economic function of trademarks can be used to understand the informational value of trademarks and their advertising function After identifying circumstances appropriate for legal intervention the Article concludes with a proposal for a new interpretation of the false advertising provision in the Lanham Act to eliminate this disparity

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