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Abstract

This Article continues to examine an important question: are trademarks a source of market power, or, put differently, when are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars. However, by raising the question and presenting some scenarios that can provide answers, my hope is that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest to address this question, I explore the proposition that creative deception and the wealth-generating capacity of trademarks are unorthodox elements that actually contribute to allegations of monopolistic behavior through product differentiation. This article is organized in three major sections in addition to introductory and concluding observations. In Part Two, I discuss the concept of creative deception and argue that through trademarking activities creative deception helps to sustain market power. In Part Three, I offer a comparative analysis of market power in different intellectual property regimes such as patents, copyrights, and trademarks. However, I examine a few case studies where allegedly market power emerged as a result of creative deception and trademarking activities. I examine, in particular, the Cereal complaints that the FTC addressed in the 1970s. Part Four of the Article offers a more systematic discussion on creative deception through three market dynamics: (a) trademarks as promoting competition, (b) trademarks as wealth generating tools, and (c) trademarks in product differentiation. These dynamics, I argue, bring us closer to view creative deception and trademarking activities as evidence that requires greater scrutiny under antitrust law.

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