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Restoring Consumer SovereigntyHow Markets Manipulate Us and What the Law Can Do About It$
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Adrian Kuenzler

Print publication date: 2017

Print ISBN-13: 9780190698577

Published to Oxford Scholarship Online: August 2017

DOI: 10.1093/oso/9780190698577.001.0001

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Argumentation of the Courts and Contemporary Legal Scholarship

Argumentation of the Courts and Contemporary Legal Scholarship

(p.23) 2 Argumentation of the Courts and Contemporary Legal Scholarship
Restoring Consumer Sovereignty

Adrian Kuenzler

Oxford University Press

This chapter analyzes existing U.S. Supreme Court case law with respect to, on the one hand, antitrust’s minimum resale price maintenance plans, bundling and tying practices, as well as refusals to deal, and, on the other hand, trademark law’s dilution, postsale, sponsorship, and initial interest confusion doctrines, including design patent and selected areas of copyright law. It demonstrates that courts, based on the free riding hypothesis, have come to protect increasing amounts of artificial shortage of everyday consumer goods and services and corresponding incentives to innovate. Through the preservation of such values, antitrust and intellectual property laws have evolved into “dilution laws” and have focused, almost exclusively, on the refurbishment of the technological supply side of our present-day digital economies rather than also on the human demand side of “creative consumption.”

Keywords:   free riding hypothesis, resale price maintenance, tying, refusals to deal, trademark dilution, copyright dilution, design patents

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