The Luxury Economy and Intellectual Property Critical Reflections

Intellectual property law plays a pivotal role in ensuring that luxury goods companies can recoup their investments in the creation and dissemination of their copyrighted works, trademarked logos, and patented designs. In 2011, global sales for luxury goods reached about $250 billion, and consumers in East and Southeast Asia accounted for more than 50 percent of that figure. The rapid expansion of the market has prompted some retailers to wield intellectual property against the influx of imitators and counterfeiters.

The Luxury Economy and Intellectual Property comprehensively explores the rise of the luxury goods economy and the growing role of intellectual property in creating, sustaining, and regulating this economy. Leading scholars across various disciplines critically consider the industry, its foundational intellectual property laws, and the public interest and social concerns arising from the intersection of economics and law. Topics covered include defining the concept of luxury, the social life of luxury goods, concerns about distributive justice in a world flooded by luxury goods and knockoffs, the globalization of luxury goods, and the economic, social, and political ramifications of the meteoric rise of the Asian luxury goods market.

Haochen Sun is Assistant Professor of Law at the University of Hong Kong Faculty of Law. His scholarship explores the theoretical foundations of intellectual property and property law by drawing on social, cultural, and political theories. Haochen's recent publications focus on the intellectual property protection of luxury goods, the ideas of social responsibility and justice in intellectual property law, and the reconceptualization of the nature of fair use in copyright law. His recent work on intellectual property has been selected for presentation at the Fourth Harvard-Stanford International Junior Faculty Forum, the plenary session of the Eleventh Intellectual Property Scholars Conference, and the Fourth Junior Scholars in Intellectual Property Workshop.

Barton Beebe is the John M. Desmarais Professor of Intellectual Property Law at New York University School of Law. He has been the Anne Urowsky Visiting Professor of Law at Yale Law School and a Visiting Professor of Law at Stanford Law School. In 2007, Professor Beebe was a Special Master in the case of Louis Vuitton Malletier v. Dooney & Bourke, Inc., No. 04 Civ. 2990 (SAS) (S.D.N.Y.). His published works include Intellectual Property Law and the Sumptuary Code, 123 Harvard Law Review 809 (2010).

Madhavi Sunder is Professor of Law at the University of California, Davis, School of Law. Her work traverses numerous legal fields, from intellectual property to human rights law and the First Amendment. She has been Visiting Professor of Law at the Yale Law School, the University of Chicago Law School, and Cornell Law School. She was named a Carnegie Scholar in 2006. She is the author of From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012).

Contents

Contributors vii

part one | Introduction
1. Introduction 3
Barton Beebe

part two | The Concept of Luxury
2. Luxury and Its Opposites: A Critical Fashion Studies Perspective 13
Susan B. Kaiser, Joseph H. Hancock II, and Sara T. Bernstein

3. The Story of Luxury Products and the (Broken) Promise of Superior Quality in a World of Prestige for the Masses 31
Irene Calboli

4. The Economics of Demand for Counterfeiting 57
Yi Qian

part three | The Social Life of Luxury Brands
5. Brands R Us 77
Mario Biagioli, Anupam Chander, and Madhavi Sunder

6. Parody as Brand 93
Stacey L. Dogan and Mark A. Lemley

7. Stolen Valor and Stolen Luxury: Free Speech and Exclusivity 121
Rebecca Tushnet

8. The Gender of Trademarks and Luxury Branding 145
Ann Bartow

part four | Law for the 1%? Concerns from Distributive Justice
9. Upstairs/Downstairs, Fashionwise: A View of Design Protection from Lower Down the Food Chain 173
Diane Leenheer Zimmerman

10. Shanzhai, Sumptuary Law, and Intellectual Property Law in Contemporary China 203
Barton Beebe

11. The Ethical Responsibilities of Luxury Companies and Consumers 225
Haochen Sun

12. The Scholarship of Envy: How the Framing of Fashion Leaves a Legal Lacuna 249
Susan Scafidi

part five | The Globalization of Luxury Brands
13. Let Them Eat Fake Cake: The Rational Weakness of China's Anti-Counterfeiting Policy 263
Kal Raustiala and Christopher Jon Sprigman

14. A Perspective from Asia: Special Protection for Luxury Brands-Legal Sense or Nonsense? 289
David Llewelyn

15. Cosmopolitanism and the Transnational Trademark 309
Sonia K. Katyal

Index 339