Abstract

Intellectual property (IP) rights and competition law serve intertwined but sometimes conflicting goals. Trademarks grant an exclusionary right—often indefinitely, so long as the mark is used—to the owner. This lawful monopoly is intended to promote consumer welfare by identifying product origin and incentivizing investment in quality and goodwill. Yet, “assertion of intellectual property rights is neither particularly suspect nor immune from scrutiny” under antitrust law. Trademark protection is justified by the need to assure consumers that mark bearing products come from the same source and meet expected quality standards. Representative examples of over enforcement include: sending overly broad cease-and-desist letters, filing lawsuits against weak targets, and pursuing claims far beyond the mark’s valid scope.

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