| The characterization of trademark as a tool of information (mainly a source identification and quality warranty) has been one of the most vital normative foundations of modern trademark law, which has led to an institutional myopia about the unexpected market power produced by trademark use. From a dynamic and market perspective, the trademark is more of a competitive tool than an information tool in nature. Trademark use may produce market power, which is the combination of "Recht" (a form of property rights) and marketing advantages (psychological attraction to consumers). When the formal institutional protection is inconsistent with consumers' recognition behavior, such protection may lead to anti-competitive, rent-seeking, information compression effects and so on, which deviate from the objectives of trademark protection, notably remedying market failure, facilitating trading, and ultimately maximizing the consumer welfare. In order to promote public interests as well as trademark holders' benefits, trademark law must make a tradeoff between static efficiency and dynamic efficiency, that is, to eliminate opportunism such as deceit while leaving enough institutional space for competition. The closure of trademark right and the openness of fair use are conductive not only to solving the problem but also to avoiding further systematic risks. |
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