Trademark law effectively locks in capitalism – commodification through trademark law puts human desires in a manufactured lens
Bracha 20 Oren Bracha is a professor of law at the University of Texas School of Law, Austin. He is one of the leading scholars of the history of Anglo-American intellectual property and has published extensively in the fields of intellectual property law and legal history. (“The History of Intellectual Property as The History of Capitalism” Case Western Reserve Law Review, Vol. 71 Issue 2 pp. 547-583, https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=4906&context=caselrev, DOA: 6/27/24)//LFS – LMH
One last structural role of intellectual property worth mentioning here pertains to trademark law. In this area, the structural role with respect to general patterns of economic activity is exactly the line dividing traditional trademark law as a form of anti-fraud protection from its gradual propertization, meaning its becoming truly a branch of intellectual property (which is still contested even today). 162 Goodwill, that elusive asset that shrewd businessmen began to sell and license around the mid-nineteenth century,163 is a double abstraction. It is the commodification of business success. Commodification took here its usual two-step course: first, reducing the dynamic and evanescent character of everything that made a business successful into an object, securing it in place by mooring it to a symbol; then, making this new object the subject of market exchange. Through the market exchange of a new object called goodwill, commodification came to be applied not only to informational consumer goods and various elements of capitalism’s infrastructure, but to business success itself. Trademark law built around goodwill supplied the constitutive legal forms. The somewhat younger cousin of goodwill—the brand—and its legal form further extended this process to encompass a particular key feature of business success: the power to cultivate and channel human desire. To succeed, businesses needed to harness human desire to buy. A major development of capitalism, embodied in the rise of the adver– tisement industry, was erecting a systematic mechanism for cultivating and channeling preferences or “needs.”164 Brands emerged as semiotic receptacles for the product of this mechanism: petrified crystals capturing and mooring down the dynamic process of channeling human desire. The (incomplete) extension of trademark law to protect the value of brands and facilitate their market exchange was the process of commodifying the value of molded human desire as embodying selling power.165 Commodifying selling power as captured by semiotic commer– cial devices laid, in turn, the foundation for yet another business organization form heavily reliant on intellectual property: the modern franchise.166