Information in the Mark and Marketplace: A Multivocal Account

Trademark theory implicitly assumes that laws favoring the interests of the producer will inevitably serve the interests of the consumer. Such a claim justifies the way that trademark law privileges the voice of the producer in the marketplace. Historical work has tended to endorse this view, explaining the development of trademarks and trademark law in terms of the information needed for consumers in the modern marketplace. Taking both a historical and “informational” perspective, this essay argues that the producer’s and the consumer’s interests do not so easily align. It speculates that a less varnished history of the mark shows more of a struggle between producers, who seek to have their voice heard without dissent, and consumers, who often want to find alternative yet informed voices to endorse or qualify the information provided by the mark. This alternative view would help explain why, as the paper seeks to show, despite conventional evolutionary narratives, the history of trademarking in the United States is in fact far from linear.