Modern trademark scholarship and jurisprudence view trademark law as an institution aimed at improving the amount and quality of information available in the marketplace.  Under this paradigm—known as the search-costs theory of trademarks—trademarks are socially beneficial because they reduce consumer search costs, and as a consequence provide producers with an incentive to maintain their goods and services at defined and persistent qualities.

Working within this paradigm, my recent refines the search-cost theory of trademarks.  It highlights an important point whose significance hitherto has largely escaped notice, namely that reducing search costs and providing incentives to maintain quality are distinct functions, although they are related.  The paper first develops a distinction between two functions: the linguistic and the trust functions of trademarks.  It then shows how recognizing their distinct nature enriches our understanding of trademark law and provides a better framework for evaluating the normative strength of various trademark rules and doctrines.  The paper demonstrates how different rules can be regarded as normatively stronger or weaker depending on the degree to which they are compatible with both, one, or neither of these functions.

In addition to its theoretical contribution, the has important practical implications, especially as courts struggle to decide trademark cases involving non-traditional circumstances, such as those involving keyword advertising by search engines, or claims based on trademark dilution.  The paper can be freely downloaded .

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With the moving full steam ahead, various stake-holders raise proposals for expanding the scope of collective administration of copyright.  This trend is not new.  Over the past two decades or so, collective administration of copyright has been touted as a solution to many of the ills of the copyright system and to many of the legal challenges brought about by the encounter between copyrights and the digital realm. It has been viewed as the magic bullet that bridges the unfortunate trade-off between incentive and access; a mechanism that allows both rewarding creators and unfettered access to works. And indeed, while not at all a new phenomenon - music performing rights have been administered collectively in many countries for most of the 20th century - collective administration has recently proliferated across many other areas of copyright, often with enthusiasm. 

I have recently completed a that offers a less enthusiastic account of this trend. The paper examines several types of collective administration and argues that with rare exceptions, the various justifications for collective administration are too weak to justify departure from the competitive paradigm that underlies market economies. It suggests that in most cases collusion and rent-seeking mainly drive the formation of copyright collectives, and suspects that only rarely such rent-seeking may be justified as a matter of policy, either as a way to improve the incentives to create socially valuable works or on distributional grounds. 

I presented an earlier draft of the paper at the , and the revised version will appear as a book chapter in a forthcoming book: Working Within the Boundaries of Intellectual Property Law (Harry First, Rochelle Dreyfuss, and Diane Zimmerman, eds., Oxford University Press).  The can be freely downloaded from .

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