The Competitive Significance of Brands

This essay summarizes our work on brands and competition. Brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Brands also have important effects on competition and the marketplace; yet the two key areas of law concerned with competition — trademark and antitrust — have missed the importance of branding. Contrary to the law’s conception of trademarks, brands are used to indicate far more than source and/or quality. Indeed those functions are far down on the list of what most businesses want for their brands. As a competition matter, businesses pursue that strategy to move beyond price, product, place, and position and create the idea that a consumer should buy a branded good or service at a higher price than the consumer might otherwise pay. The critical question is how to integrate brand management into existing legal doctrine. Our project is to answer this question. We start by describing the way brands work. Then we set out the core mistakes trademark and antitrust law make. We conclude by explaining some of the differences a brand perspective would have for antitrust and trademark law