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Utilitarian arguments

The public justifications for trade marks differ from those for copyright and patent because trade marks do not function as a legal device for stimulating the production of commodities.

Utilitarian arguments are threefold. First of all, as Lord Nicholls of Birkenhead said in Scandecor Developments AB v. Scandecor Marketing AB “inherent in this definition is the notion that distinctiveness as to business source (the goods of one understand) is the essential function of a trade mark today.”  This source-distinguishing function of trade marks creates incentives for undertakings to produce products of desirable qualities in a competitive economy, and the public will benefit from the choice. 51 And competitiveness is equated to success of capitalism. The importance of trade marks to the UK economy is proved by a study carried out by Higgins and James, which concludes that the higher the level of trade marking activity is, the more prosperous the economy is.

Secondly, trade marks enhance the market efficiency by enabling consumers to evaluate the quality of an item quickly by referencing to advertising, to previous experience, to recommendation and other knowledge of the marks. In addition, trade marks facilitate and enhance the marketing of products not merely in a large scale but also in foreign markets without loss of identity, and thus saved consumer's costs of shopping indirectly.

Thirdly, the legal protection of trade marks is a means of promoting fair competition and preventing unjust enrichment. In other words, why a person should be allowed to reap where he has not sown? But this ethical justification is premised on the condition that only the proprietors of trade marks have sown in the process of creation. As was discussed in section 2.3.1, trade marks result from combination efforts of the trade marks proprietors, the customers and the public, so why the owners of trade marks should be allowed to take all the credits? It is also argued that the role of law is to control trade mark infringement which is “a sister of forgery, fraud, counterfeiting.”54 But it is not always easy to assess whether there is an infringement of trade marks especially where consumers are not confused. 55

conclusion

As was presented above, the legal protections of copyright, patents and trade marks are justified from different angles.

For copyright, three basic arguments are proffered for conferring exclusive rights on the expression of an idea: natural rights arguments, reward arguments and utilitarian arguments. Natural rights arguments are framed in personality theory which regards a creation as an extension of its creator's individuality or person and Locke's labour theory which argues 本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。