A free market moment

Stephen Laniel finds, in trademark law, reason not to throw the whole thing over:

The public-health justification for trademark law is pretty clear: if the law defends my product brand at the point of a gun, I have an incentive to strengthen that brand. It’s a defense against fraudsters latching onto my product’s goodwill. . . .

How would this work in an anarcho-capitalist world? For that matter, how would it work in a slightly more palatable night-watchman state? What defense would we have against fraudulent food sales? I presume that Randians elevate the free market here: private enforcement would take care of it. I would spend lots of money to defend the purity of my brand; I’d hire private enforcers to kneecap those who sell Sewage Coke. So the anarcho-capitalist world would abound with private enforcers. But surely in a free market, increasing returns would quickly lead some private enforcers to be more efficient at it than others (e.g., they have much friskier cudgels). They would sell enforcement for less, and would take over a sizable fraction of the market. The lowest-cost enforcer of private brands, armed with guns, is … the government! Either that, or there would be a great many small trademark enforcers, in which case the economic waste would probably be overwhelming. (To be fair about such things, we’d have to do some math.)

In general, a lot of anarcho-capitalism looks like government by another name.

The irony to me is that most Randians, and probably most anarcho-capitalists who aren’t also survivalists or members of the Aryan Identity movement, are of the spindly-legged, pencil-necked type most likely to be immediately bulldozed by the stark fist of pure market reality if it all were to go black tomorrow.

Not like us macho IP lawyers!

Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.