Finding Your Identity and Partner in a Trade Mark? Consumption, Innovation and the Law

Trade marks are not traditionally considered to be central to innovation because they do not need to be innovative to be protected. Instead, trade marks are used to indicate the source of products and services. Of course, if consumers could not determine the source, this would reduce the incentive for traders to compete through innovative products and services. Here, we argue that trade marks implicate innovation in yet another way. Namely, because consumption can be based on identity characteristics and personality traits of trade marks, which can result in consumer-brand relationships that are either or both identity-related and/or partner-like, companies have incentives to innovate in accordance with the identity characteristics and personality traits. Failure to do so can result in negative reactions from consumers and relationship break-ups, which impacts innovation selection and hence societal good. We explore the implications of this for trade mark law theory and practice.