It is generally agreed that the role of trademark protection is to ensure that consumers can efficiently identify and purchase a particular company’s product. However, the scope of this protection is highly contested. The recent emergence and expansion of the dilution doctrine, assignments in gross, “intent to use” applications, and logo protection have raised scholarly concern: These doctrines seem to protect the trademark as property in itself with value quite apart from its role as a device to help consumers identify particular products from particular sellers.
This Comment explains why this “propertization” critique of trademark law is not wholly accurate, and further why the economic rationale that supports trademark protection is unnuanced and therefore unhelpful as a tool to understanding the proper limits of trademark law. This Comment argues that by mapping the legally accepted operation of trademarks to a semiotic model, it is easier to see when such protections further the rationale and when they do not. Ultimately, this Comment concludes that in many cases these protections actually do further the accepted role of trademark protection. Using this more precise understanding of emerging trademark jurisprudence, commentators and jurists will be better able to assess the value of particular trademark protections.