The legal system of trademarks is not just a tool of a market economy—but a semiotic economy as well. Trademarks are signs that work with industrial efficiency to commodify every aspect of reality—seeking to make everything perfectly transparent in order to produce differentiation.
Beebe 08 [Barton Beebe, John M. Desmarais Professor of Intellectual Property Law at NYU School of Law, Co-Director of the Engelberg Center on Innovation Law & Policy, Co-Director of the Competition, Innovation, and Information Law LLM Program, received a Podell Distinguished Teaching Award from NYU School of Law, James S. Carpentier Visiting Professor of Law, Columbia Law School in 2020, Anne Urowsky Visiting Professor of Law at Yale University in 2011, Visiting Professor of Law at Stanford University in 2009, Law Clerk for Hon. Denise Cote, United States District Court for the Southern District of New York in 2002, J.D. from Yale Law School, PhD in English from Princeton University, B.A. with honors from University of Chicago, Trademark Law and Theory, 2008, “The semiotic account of trademark doctrine and trademark culture”, //zrubin]
In a modern industrialized mass society, particularly a wealthy one, perhaps the most pressing scarcity that the individual faces is the scarcity of distinction—distinction not in the sense of prestige, but in the sense simply of difference that conduces to identity. Trademarks provide this difference and they do so through their sign value. It has long been a cliché, of social theory as much as of advertising practice, that consumers communicate with each other by the objects they consume. Of late, however, commodity culture has begun to unburden itself of the object language of material commodities. The trademark system has developed as an alternative language of consumption, and its development has been rapid indeed. No other language in history, and certainly no other language of distinction, has experienced such explosive growth, both extensively and intensively, in so short a time. The trademark system’s classificatory scheme now orders culture as much as the market—and, in doing so, evidences the degree to which the two fields have merged. To be sure, it is not the only such classificatory system, but none exercises its classifying function so exoterically, in terms so easily and widely understood. Where other systems of distinction are opaque, even unknowable except to those whom they privilege, the power of the trademark scheme resides in its emphatic transparency. While the semiotic analysis—or the economic analysis, for that matter—may go far towards explaining how the trademark system has evolved as it has, it will not ultimately explain why. Underlying the semiotic logic of the trademark system and of trademark law is a more profound logic, what Baudrillard has termed the “social logic of differentiation.”85 This logic meets “an objective social demand for signs and differences,”86 for “the distinguishing processes of class or caste which are fundamental to the social structure and are given free rein in ‘democratic’ society.”87 The trademark system is ultimately both an agent and an object of “classification struggle”:88 an agent in its own struggle to establish itself as the preeminent system of classification, and an object in the struggle by producers and consumers within the trademark system to bend its classificatory scheme to their own economic or cultural ends. The culture industries—and what industries aren’t?—have long sold trademarks as commodities in their own right. Entire areas of trademark doctrine cannot be understood except as systems of rules designed to facilitate the commodification—indeed, the “industrial production”89—of social distinction.