Spencer Weber Waller

Public Choice and the International Harmonization of Antitrust Law

This essay comments on three different articles offered by Diane Wood, Eleanor Fox and Peter Kunzlik at a symposium at the University of Minnesota in honor of the work of E. Thomas Sullivan. Each of the three articles provides different perspectives on the desirability and likelihood of the international harmonization of antitrust law. My comment uses public choice to tie together these three seemingly diverse approaches and to apply public choice theory to examine how, where, and why harmonization of competition law and policy has succeeded or failed.

Brands, Competition Law and IP

Brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Contrary to the law’s conception of trademarks, brands are used to indicate far more than source and/or quality. This volume begins the process of broadening the legal understanding of brands by explaining what brands are and how they function, how trademark and antitrust/competition law have misunderstood brands, and the implications of continuing to ignore the role brands play in business competition. This is the first book to engage with the topic from an interdisciplinary perspective; hence it will be a must-have for all those interested in the phenomenon of brands and how their function is recognized by the legal system. The book integrates both a competition and an intellectual property law dimension and explores the regulatory environment and case law in both Europe and the United States.

Competition Policy in the Global Economy: An On-Line Case Book

This on-line casebook examines the fields of international antitrust and international trade law. In general, it examines how the United States and other jurisdictions regulate competition among firms which do business abroad. This will include how competition policy regulates individuals and firms located outside the United States in their competition with United States firms as well as the rules governing United States firms. These materials are intended for use in a U.S. style law school class or seminar and designed to provide the base knowledge necessary to engage in sophisticated research in the field and to produce a research based paper of 20-25 pages in length. By necessity, these materials are in English and have primarily a United States focus. The value of an on-line casebook in this field goes beyond the merely the cost savings and convenience. It is also an opportunity for a collaborative exercise that will allow for the creation of a more in-depth and creative set of materials that can be done in traditional hard cover format. Use of the casebook for educational purposes with attribution is available on a royalty-free basis under a Creative Commons Attribution-Share Alike 3.0 United States License. For all other uses please contact Professor Waller at the Institute for Consumer Antitrust Studies at Loyola University Chicago School of Law. I therefore invite any competition law teacher or scholar to submit additional chapters on other competition law topics or jurisdictions not covered in these materials for inclusion in future iterations of these materials. Materials must be original or accompanied with proof of permission/license to use for this purpose and be in English and in either Word or Word Perfect. Submission of materials constitutes your permission to include the material in future editions of the on-line casebook for educational purposes with attribution available on a royalty-free basis under a Creative Commons Attribution-Share Alike 3.0 United States License. Submission of materials also constitutes permission to edit the submitted material for style, content, and compatibility with the existing text, although every reasonable effort will be made to allow you to review edited material before posting on-line. I look forward to working with the global competition law and policy community to make this the most effective and interesting teaching tool possible.

The two sides of brand marketing: reconsidering competition law governing distribution restraints

Introduction As a participant in an international intellectual property conference in the late 1970s, I had occasion to exchange thoughts about brand marketing with a Russian academic. As he described the distribution system in a socialist economy dominated by state-owned enterprises, there was little place for branded products. Yet, he pointed out, Russian consumers wanted the information that branding could provide. According to my colleague, savvy consumers in his country knew that a particular state enterprise in Kiev made comfortable and well-constructed shoes. Armed with this knowledge, consumers would inquire of their local shoe store when the next shipment of shoes from Kiev would arrive. Lines often formed when the word got out that the preferred shoes were available. This story from the Soviet Union, it turns out, says a lot about why branding is an essential part of modern, efficient marketing. Without brands, consumers struggle to learn about reputation and quality. Producers who make a quality product, for their part, struggle to get that information out to the buying public. Once a product is branded, the producer has an incentive to use advertising to promote a brands qualities. Indeed, word of mouth may allow the brand to sell itself. The producer can expand production to achieve economies of scale, and the consumer can more comfortably trust that the producers incentive to maintain brand reputation will assure a quality product. That is brand marketing at its best – as it should work. There is, however, a darker side. Exaggeration, obfuscation, and even outright deceit have long been associated with the sale of some branded products. The marketing of patent medicines in the late nineteenth and early twentieth centuries is an example. Most of these medications were not patented, although their ingredients, which often included alcohol, opiates, or both, were kept secret from buyers. Advertising was intense, and laced with hyperbole and unsubstantiated claims about curative effects, but silent about ingredients. By 1906 investigative reports of ill effects and even death caused by consumption of these medications, along with Upton Sinclairs novel about meat packing abuses, prompted Congress to enact the Pure Food and Drug Act.