Gone in sixty milliseconds: Trademark law and cognitive science

Texas Law Review

Volumn 86, Issue 3, 2008, Pages 507-568

  Tushnet, Rebecca ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 41049106887     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (447)

1. See Gitte Lindgaard et al., Attention Web Designers: You Have 50 Milliseconds to Make a Good First Impression!, 25 BEHAV. & INFO. TECH. 115,115 (2006) (stating the results of a study on visual appeal);
2. cf. MALCOLM GLADWELL, BLINK: THE POWER OF THINKING WITHOUT THINKING 12-13 (2005) (citing Nalini Ambady & Robert Rosenthal, Haifa Minute: Predicting Teacher Evaluations from Thin Slices of Nonverbal Behavior and Physical Attractiveness, 64 J. PERSONALITY & SOC. PSYCHOL. 431, 431 (1993)) (observing that students viewing a few seconds of a teacher with the sound turned off produce basically the same ratings of her effectiveness as students having her for a full semester).
3. See Michael Hopkin, Web Users Judge Sites in the Blink of an Eye, NATURE NEWS, Jan. 13, 2006, http://www.nature.com/ news/2006/060109/full/060109-13.html ("[I]f you can snare people with an attractive design, they are more likely to overlook other minor faults with [a Web] site, and may rate its actual content.. . more favourably. This is because of 'cognitive bias' .... People enjoy being right, so continuing to use a website that gave a good first impression helps to 'prove' to themselves that they made a good initial decision. The phenomenon pervades our society ... .").
4. In a 2002 press release, Emory University's neuromarketing research institute claimed it could "identify patterns of brain activity that reveal how a consumer is actually evaluating a product, object or advertisement... to help marketers better create products and services and to design more effective marketing campaigns." Douglas Rushkoff, Reading the Consumer Mind: The Age of Neuromarketing Has Dawned, N.Y. PRESS, Feb. 17, 2004 (omission in original), available at http://www.nypress.com/print.cfm? content_id=9637.
5. See Samuel M. McClure et al., Neural Correlates of Behavioral Preference for Culturally Familiar Drinks, 44 NEURON 379, 379 (2004).
6. Id. at 385.
7. See Mead Data Cent., Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1031 (2d Cir. 1989) (listing examples of such "hypothetical anomalies" whose use leads to the "whittling away of an established trademark's selling power" (quoting New York legislative history)).
8. Federal Trademark Dilution Act of 1995 (FTDA), Pub. L. No. 104-98, 109 Stat. 985 (1996) (codified as amended at 15 U.S.C.A. § 1125(c) (West Supp. 2007)).
9. See generally Clarisa Long, Dilution, 106 COLUM. L. REV. 1029, 1031-32 (2006) (documenting that after an initial spike of successful dilution claims, courts quickly began imposing substantial barriers to success on dilution claims, culminating in a surprisingly low success rate).
10. See, e.g., Jerre B. Swann, Sr., Dilution Redefined for the Year 2002, 92 TRADEMARK REP. 585, 585 (2002) [hereinafter Swann, Dilution Redefined] ("[A] growing body of knowledge as to how the mind stores and retrieves brand information - the cognitive psychology of trademarks - has immense potential for explaining dilution theory in a marketplace context.");
11. Jacob Jacoby, Dilution in Light of Victoria's Secret: The Psychology, Varieties and Measurement of Trademark Dilution 9-11 (N.Y. Univ. Ctr. for Law & Bus. Working Paper Series, No. CLB-03-020, 2003) [hereinafter Jacoby, Dilution in Light], available at http://w4.stern.nyu.edu/emplibrary/03-020.pdf (arguing that dilution has always been a psychological construct). These articles are part of a growing literature on trademark law and cognitive psychology. See, e.g., Graeme W. Austin, Trademarks and the Burdened Imagination, 69 BROOK. L. REV. 827, 837, 917 (2004) (arguing for greater reliance in trademark cases on cognitive science);
12. Jacob Jacoby, The Psychological Foundations of Trademark Law: Secondary Meaning, Genericism, Fame, Confusion and Dilution, 91 TRADEMARK REP. 1013 (2001) [hereinafter Jacoby, Psychological Foundations] (considering multiple aspects of trademark through the lens of cognitive psychology);
13. Chi-Ru Jou, The Perils of a Mental Association Standard of Liability: The Case Against the Subliminal Confusion Cause of Action, 11 VA. J.L. & TECH. 2, 15-18 (2006) (discussing cognitive heuristics and biases triggered by trademarks);
14. Jeremy N. Sheff, The (Boundedly) Rational Basis of Trademark Liability, 15 TEX. INTELL. PROP. L.J. 331, 333 (2007) (arguing that cognitive psychology "provide[s] an elegant and robust framework for the positive analysis of all varieties of trademark cases");
15. Jerre B. Swann, An Interdisciplinary Approach to Brand Strength, 96 TRADEMARK REP. 943, 945 (2006) [hereinafter Swann, Interdisciplinary Approach] ("Largely, the developments in the 'sciences' of trademarks appear to support existing legal formulations. They additionally possess untapped potential in terms of leading to more predictable, accurate and consumer-beneficial outcomes in trademark conflicts, and they may even presage a new era in the scope of brand protection.").
16. See, e.g., Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1570-72 (2005) (arguing for changes in FCC policy based on cognitive studies of racial bias);
17. cf. Stephen J. Morse, Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, 3 OHIO ST. J. CRIM. L. 397, 397 (2006) (criticizing recent efforts to apply neuroscience to theories of criminal responsibility).
18. See, e.g., Laura Petrecca, Product Placement - You Can't Escape It, USA TODAY, Oct. 11, 2006, at B1 ("Advertising is intruding on more previously untouched corners of life, including novels, hotel shower curtains, school buses and the bellies of pregnant women. Golfer Fred Couples is often followed around the course by a gaggle of [women] paid to wear the name Bridgestone Golf, his sponsor.").
19. Times Square on Flickr, http://www.flickr.com/photos/stignygaard/50267318 (licensed through Creative Commons, see Creative Commons Attribution 2.0 Generic, http.//creative commons.org/licenses/by/2.0/deed.en).
20. See, e.g., KEN SACHARIN, ATTENTION! HOW TO INTERRUPT, YELL, WHISPER, AND TOUCH CONSUMERS 3 (2001) ("[T]he power of marketing communications is eroding from lack of attention.");
21. Gerald Zaltman & Robin Higie Coulter, Seeing the Voice of the Customer: Metaphor-Based Advertising Research, J. ADVERTISING RES., July-Aug. 1995, at 35, 36 (explaining that "time famine" makes it "increasingly difficult for advertisers to capture consumers' attention and information-processing time").
22. Melanie Wells, In Search of the Buy Button, FORBES, Sept. 1, 2003, at 62, 64 (quoting James Bailey, professor of organizational behavior at George Washington University). See generally GERALD ZALTMAN, HOW CUSTOMERS THINK: ESSENTIAL INSIGHTS INTO THE MIND OF THE MARKET (2003) (using neuroscience as part of marketing analysis). The promise may be overstated; there is a long history in marketing of discoveries that will supposedly guarantee access to consumers' minds.
23. See, e.g., VANCE PACKARD, THE HIDDEN PERSUADERS 3-10 (rev. ed. 1981) (criticizing advertisers' use of strategies derived from psychiatry and social science that bypass consumers' rational choices in favor of altering "the fabric of men's minds" (quoting the president of the Public Relations Society of America)).
24. See Bruce F. Hall, A New Model for Measuring Advertising Effectiveness, J. ADVERTISING RES., Mar.-Apr. 2002, at 23, 24 ("'Rational' cognitive processes are not the primary drivers of purchase behavior through which advertising operates. They are in fact outcomes of a complex process of perception, experience, and memory - a process that is driven primarily by emotions and feelings.").
25. David Wahlberg, Advertisers Probe Brains, Raise Fears, ATLANTA J.-CONST., Feb. 1, 2004, at Q1.
26. Id.
27. As one mild skeptic says, "[T]here's something absurd about the way these imaging studies use brain images to validate subjective experience. It's as if we're not sure if we can believe in the enjoyment of ice cream on its own terms." Daniel Engber, Thinking in Tongues: What Can We Learn from a Babbling Brain?, SLATE, Nov. 17, 2006, http://www.slate.com/id/ 2153947. For other examples of the idea that brain scans provide unique access to truth, see Clive Thompson, There's a Sucker Born in Every Medial Prefrontal Cortex, N.Y. TIMES, Oct. 26, 2003, § 6 (Magazine), at 54 ("M.R.I, scanning offers the promise of concrete facts - an unbiased glimpse at a consumer's mind in action. To an M.R.I. machine, you cannot misrepresent your responses. Your medial prefrontal cortex will start firing when you see something you adore [like Playboy], even if you claim not to like it.") and Deborah L. Vence, Pick Someone's Brain: Neurological Research Seeks Brand Effects, MARKETING NEWS, May 1,2006, at 11, 12 ("[Neurologist Marco Iacoboni says that people] tell [marketers] what (they think) they are supposed to say, but the brain tells a different story. Brain data shows what people really like.").
28. Deena Skolnick Weisberg et al., The Seductive Allure of Neuroscience Explanations, 20 J. COGNITIVE NEUROSCIENCE (forthcoming 2008) (manuscript at 4, on file with author) (finding that irrelevant references to neuroscience made laypeople and students in a neuroscience course believe bad explanations for psychological phenomena and noting that "people often find neuroscience information alluring because it interferes with their abilities to judge the quality of the psychological explanations that contain this information").
29. See, e.g., Sanjoy Ghose & Oded Lowengart, Taste Tests: Impacts of Consumer Perceptions and Preferences on Brand Positioning Strategies, 10 J. TARGETING, MEASUREMENT & ANALYSIS FOR MARKETING 26, 30 (2001) ("In a blind taste test, Diet Pepsi was preferred by 51 per cent of the subjects while Diet Coke was preferred by 44 per cent. In contrast, a branded taste test resulted in Diet Pepsi being preferred by 23 per cent with Diet Coke being preferred by 65 per cent.").
30. See McClure et al., supra note 4, at 385, 383-85 (noting the "wealth of cultural meaning" the Coke and Pepsi brands possess).
31. See, e.g., ROBERT B. CIALDINI, INFLUENCE: SCIENCE AND PRACTICE 164 (4th ed. 2001) (noting that cars advertised in pictures with beautiful women are judged to be faster and better designed than cars advertised without accompanying beautiful women);
32. GLADWELL, supra note 1, at 161-63 (noting that inexpensive brandy performs differently in taste tests depending on how elaborate the bottle is);
33. id. at 163 (noting that a 15% increase in yellow color on soda cans affects perception of lemon-lime flavor);
34. id. at 163-64 (noting that changing a literal depiction of a human on a food package to a cartoon harms the product's selling power);
35. see also SETH GODIN, ALL MARKETERS ARE LIARS: THE POWER OF TELLING AUTHENTIC STORIES IN A LOW-TRUST WORLD 3-5 (2005) (discussing similar research results involving wine glasses);
36. Torben Hansen, The Effect of Physical Surroundings in Usage Situations on Consumer Perception of Food Quality and on Consumer Emotions, 15 J. INT'L CONSUMER MARKETING 31, 31 (2002) (observing that elegant physical surroundings have positive effects on perceived quality and pleasure in food tasting).
37. See Thomas N. Robinson et al., Effects of Fast Food Branding on Young Children's Taste Preferences, 161 ARCHIVES PEDIATRICS & ADOLESCENT MED. 792, 794-95 (2007) (comparing three- to five-year-old children's evaluations of identical foods, some from McDonald's and some from a grocery store, and finding that children with more exposure to McDonald's and McDonald's advertising had stronger preferences for the versions served in McDonald's packaging).
38. For example, people are more likely to see two objects as similar if they're told (falsely) that others have seen them that way, even when their judgments are private and not subject to social sanctions for nonconformity. MRI scans suggest that the effect is perceptual - it occurs in visual-processing areas of the brain - and not simply a matter of subjects altering their reports of what they see. See Gregory S. Berns et al., Neurobiological Correlates of Social Conformity and Independence During Mental Rotation, 58 BIOLOGICAL PSYCHIATRY 245, 251 (2005). Ads appearing to represent others' opinions can thus change our own. See Wells, supra note 14, at 65-66;
39. see also Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 HASTINGS L.J. 983, 1010-11 (2005) (discussing research on how perceived popularity of a belief can change individuals' perceptions of its truth);
40. Matthew J. Salganik et al., Experimental Study of Inequality and Unpredictability in an Artificial Cultural Market, 311 SCIENCE 854, 854-55 (2006) (same for music ratings).
41. See ZALTMAN, supra note 14, at 183, 182-83 (citing studies demonstrating advertising's ability to "infiltrate memory" and even to create memories of events that never occurred);
42. see also id. at 12-13, 166-67, 180-81 (describing various successful experiments in manipulating memories about products or services);
43. Kathryn A. Braun & Elizabeth F. Loftus, Advertising's Misinformation Effect, 12 APPLIED COGNITIVE PSYCHOL. 569, 586 (1998) ("[M]sinformation received following a direct experience with a product altered the recollections respondents made about that product.");
44. Kathryn A. Braun et al., Make My Memory: How Advertising Can Change Our Memories of the Past, 19 PSYCHOL. & MARKETING 1, 17, 17-18 (2002) (discussing research finding that "featuring impossible events in autobiographical advertising can cause people to believe they had experienced the events");
45. Kathryn A. Braun, Postexperience Advertising Effects on Consumer Memory, 25 J. CONSUMER RES. 319, 332 (1999) (finding that advertising can induce consumers to change taste judgments from negative to positive);
46. Kathryn A. Braun-LaTour et al., How and When Advertising Can Influence Memory for Consumer Experience, J. ADVERTISING, Winter 2004, at 7, 19 (observing that ads changed memories to be consistent with the advertised claims, inducing people to believe they had personally met Bugs Bunny at a Disney park);
47. Hall, supra note 15, at 25 ("[P]ost-experience exposure [to ads] is also subject to 'interpretation.' The advertisement not only influences the consumer to feel that the sensory or social experience was a good one, but it also provides reasons to believe that it was. As with pre-experience advertising, if the advertisement fails to provide or imply a reason-to-believe, the interpreter will supply one.").
48. Hall, supra note 15, at 26.
49. E.g., Scott A. Hawkins & Stephen J. Hoch, Low-Involvement Learning: Memory Without Evaluation, 19 J. CONSUMER RES. 212, 223 (1992);
50. Scott A. Hawkins et al., Low-Involvement Learning: Repetition and Coherence in Familiarity and Belief, 11 J. CONSUMER PSYCHOL. 1, 2 (2001);
51. cf. Gita Venkataramani Johar et al., MAPping the Frontiers: Theoretical Advances in Consumer Research on Memory, Affect, and Persuasion, 33 J. CONSUMER RES. 139, 143 (2006) ("Mere exposure to a product results in an increased preference for that product." (citation omitted)).
52. See John Deighton, The Interaction of Advertising and Evidence, 11 J. CONSUMER RES. 763, 763 (1984) (describing a two-step model of consumer behavior in which an individual entertains a tentative hypothesis about a product and then attempts to confirm it);
53. cf. Stephen J. Hoch & John Deighton, Managing What Consumers Learn from Experience, J. MARKETING, Apr. 1989, at 1, 1 ("Learning from self-generated experience with a product or service is not a simple process of discovering objective truth. It is, to a greater or lesser extent, open to influence[,] and the consumer's confidence in the objectivity of such learning can be illusory.").
54. Robert Lee Hotz, Mapping the Mind: Searching for the Why of Buy, L.A. TIMES, Feb. 27, 2005, at A26.
55. SCOTT M. DAVIS, BRAND ASSET MANAGEMENT: DRIVING PROFITABLE GROWTH THROUGH YOUR BRANDS 3 (2000);
56. see also DOUGLAS B. HOLT, HOW BRANDS BECOME ICONS: THE PRINCIPLES OF CULTURAL BRANDING 15 (2004) ("Since the 1970s, this provocative image - of brands contesting for scarce mental real estate in consumers' minds - has been the most influential idea in branding.");
57. AL RIES & JACK TROUT, POSITIONING: THE BATTLE FOR YOUR MIND 58 (20th anniversary ed. 2001) ("The power of the organization is derived from . . . [t]he position that the product owns in the prospect's mind.");
58. ZALTMAN, supra note 14, at 71 ("The unconscious mind represents a significant frontier where marketers may establish secure beachheads of competitive advantage. Certainly no firm can claim to understand consumers without colonizing this land of opportunity."). Though Zaltman disavows mind control, he does suggest that neuromarketing and related techniques can make marketing more effective across the board, reducing product-failure rates from their current level of 80%. See id. at 127, 289. This teleological approach, suggesting that properly managed consumers will find a way to buy more of everything, posits an end state of marketing nirvana even while it concedes some agency to consumers.
59. RIES & TROUT, supra note 30, at 29.
60. As Mark McKenna persuasively argues, this consumer-protection justification, currently couched in terms of economic efficiency, was not the traditional understanding of the wrong of trademark infringement, though infringement law has successfully been retrofitted and reorganized around it. See Mark P. McKenna, The Normative Foundations of Trademark Law, 82 NOTRE DAME L. REV. 1839 (2007). As McKenna explains, at the beginning of the twentieth century, trademarks generally protected only against unfair competition - use of a confusingly similar mark on the same products as those produced by the trademark owner, leading to diverted sales. Id. at 1900. Industrial manufacturing and marketing led to situations in which use of a confusingly similar mark on different products could potentially harm the trademark owner, either by risking its reputation if the other products were shoddy or by precluding it from entering a new field that would otherwise make business sense, as when a pancake-mix manufacturer wanted to use its mark on pancake syrup. Id. at 1901. Courts eventually began to treat this type of consumer confusion as trademark infringement even in the absence of direct competition. Id. at 1901-02.
61. See Frank I. Schechter, The Rational Basis of Trademark Protection, 40 HARV. L. REV. 813 (1927).
62. See id. at 831-33.
63. See Gregg Duffey, Trademark Dilution Under the Federal Trademark Dilution Act of 1995: You've Come a Long Way Baby - Too Far, Maybe?, 39 S. TEX. L. REV. 133, 140-41 (1997) (discussing state approaches to trademark dilution).
64. Federal Trademark Dilution Act of 1995 (FTDA), Pub. L. No. 104-98, 109 Stat. 985 (1996) (codified as amended at 15 U.S.C. § 1125(c) (West Supp. 2007)).
65. State laws generally spoke of "injury to business reputation" and "dilution of the distinctive quality of a mark" but did not define those concepts further, contributing to judicial resistance to dilution. See William G. Barber, The Trademark Dilution Revision Act of 2005: Breathing Life Back into the Federal Dilution Statute, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1113, 1114, 1113-15 (2006). The FTDA originally defined dilution as "the lessening of the capacity of a famous mark to identify and distinguish goods or services," though this wording has now been changed. 15 U.S.C. § 1127 (2000), amended by Trademark Dilution Revision Act of 2006, Pub. L. No. 109-312, § 3(e), 120 Stat. 1730, 1733 (striking out the definition of "dilution").
66. See Christine Haight Farley, Why We Are Confused About the Trademark Dilution Law, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1175 (2006) (collecting examples).
67. Long, supra note 8;
68. see also Swann, Dilution Redefined, supra note 9, at 597-98 (discussing judicial distrust of dilution). Long evaluates only federal dilution claims, not state-law dilution claims litigated in federal court, see Long, supra note 8, at 1038, which may lead her to understate the utility of dilution claims to plaintiffs. See Robert C. Bird, The Impact of the Moseley Decision on Trademark Dilution Law 8 (May 17, 2006) (unpublished manuscript, on file with author), available at http://ssrn.com/abstract=903003 (discussing several successful state-law-only dilution claims).
69. For an overview, see Barton Beebe, A Defense of the New Federal Trademark Antidilution Law, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1143 (2006). The amendments specify that plaintiffs need only show likely dilution, not actual dilution, overturning Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003), and that a famous trademark is federally protected against dilution whether it is inherently distinctive or has acquired distinctiveness, overturning Second Circuit precedent, see, e.g., TCPIP Holding Co. v. Haar Commc'ns Inc., 244 F.3d 88, 96 (2d Cir. 2001). See Trademark Dilution Revision Act of 2006 § 2 (codified at 15 U.S.C.A. § 1125(c)(1) (West Supp. 2007)). The amendments also provide that only wide recognition among the general consuming public makes a mark "famous" such that it qualifies for federal dilution protection, overturning cases that recognized "niche" fame, see id. § 1125(c)(2)(A); reorganize the available defenses for activities, such as comparative advertising and parody, see id. § 1125(c)(3); and set out factors for courts to consider in assessing dilution by blurring, see id. § 1125(c)(2)(B). Though these changes will provide grist for years of the litigation mill, they do not change the ways in which cognitive theories can be applied to prove or infer the existence of dilution.
70. See, e.g., Nat'l Football League Props., Inc. v. Prostyle, Inc., 57 F. Supp. 2d 665, 668-73 (E.D. Wis. 1999) (rejecting Jacoby's dilution survey and finding that Jacoby's general explanations of the underlying cognitive theory were inadmissible); Barnes Group Inc. v. Connell Ltd. P'ship, 793 F. Supp. 1277, 1293-94 (D. Del. 1992) (rejecting Jacoby's theories of dilution based on cognitive psychology as inapplicable to the present case).
71. 306 F.3d 509 (7th Cir. 2002).
72. Id. at 510.
73. Id. at 510-12.
74. There are other theories of language and cognition. The new trademark-dilution theory is based on an associationist model of cognition, which is distinct from structuralist, universal grammar models. Because the latter have not yet produced theories of trademarks, and it is not clear that they would have much to say about trademark meanings specifically, I focus only on the associationist model.
75. See, e.g., JOHN R. ANDERSON, COGNITIVE PSYCHOLOGY AND ITS IMPLICATIONS 183-85 (4th ed. 1995) (explaining the concept of spreading activation);
76. Jacoby, Psychological Foundations, supra note 9, at 1019-20 (same);
77. Swann, Interdisciplinary Approach, supra note 9, at 946-47, 950 (linking spreading activation to brand association).
78. See Christine A. Sevald & Gary S. Dell, The Sequential Cuing Effect in Speech Production, 53 COGNITION 91,110 (1994) (discussing sequential cuing).
79. See id. (modeling sequential cuing).
80. See Maureen Morrin & Jacob Jacoby, Trademark Dilution: Empirical Measures for an Elusive Concept, 19 J. PUB. POL'Y & MARKETING 265, 267 (2000).
81. See Swann, Dilution Redefined, supra note 9, at 613 (arguing that if two brands are associated, "discrete and (usually) consistent propositions linked to each symbol become part of a larger, divergent array, with adverse memory consequences for both the brand concepts and each of their separate links").
82. Ty Inc. v. Perryman, 306 F.3d 509, 511 (7th Cir. 2002). It is worth noting that there exist multiple establishments using the name Tiffany's, but Judge Posner still felt that Tiffany's was famous and distinctive enough to serve as an example. The failure of the prototype might be thought to cast doubt on dilution theory generally. See David S. Welkowitz, Reexamining Trademark Dilution, 44 VAND. L. REV. 531, 539 (1991).
83. Perryman, 306 F.3d at 511;
84. see also Richard A. Posner, When Is Parody Fair Use?, 21 J. LEGAL STUD. 67, 75 (1992) ("A trademark seeks to economize on information costs by providing a compact, memorable, and unambiguous identifier of a product or service. The economy is less when, because the trademark has other associations, a person seeing it must think for a moment before recognizing it as the mark of the product or service.").
85. See Swann, Dilution Redefined, supra note 9, at 612 ("Upon hearing the word in an advertisement, the consumer could not thus register an immediate, information-laden impression favorable to the [famous trademark owner], but would have to await context to ascertain whether a more mundane commodity was being promoted. As a 'marketing tool,' the [famous] brand would have less utility."). Swann cites general interviews with psychologists and cognitive-psychology texts that refer to "'response competition,' potentially resulting in 'unlearning,' or forgetting, [which] can occur when the same cue brings to consciousness two disparate propositions or concepts. Similarly, 'the more propositions related to a concept the less activation will be received by each when the concept is activated.'" Id. at 612-13 (footnote omitted) (quoting R. REED HUNT & HENRY C. ELLIS, FUNDAMENTALS OF COGNITIVE PSYCHOLOGY 176-77,195 (6th ed. 1999)).
86. See, e.g., Stacey L. Dogan & Mark A. Lemley, Trademarks and Consumer Search Costs on the Internet, 41 HOUS. L. REV. 777, 790 (2004) [hereinafter Dogan & Lemley, Consumer Search Costs] (arguing that dilution law protects against increased search costs);
87. Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 STAN. L. REV. 1161, 1197 (2006) [hereinafter Dogan & Lemley, Right of Publicity] ("[L]ike traditional trademark law, dilution properly understood is targeted at reducing consumer search costs.");
88. Lee Goldman, Proving Dilution, 58 U. MIAMI L. REV. 569, 576, 575-76 (2004) (asserting that the use of well-known trademarks by other users creates "clutter" and imposes additional search costs on consumers);
89. Daniel Klerman, Trademark Dilution, Search Costs, and Naked Licensing, 74 FORDHAM L. REV. 1759 (2006) (analyzing dilution and the naked-licensing doctrine from a search-costs perspective);
90. J. Thomas McCarthy, Proving a Trademark Has Been Diluted: Theories or Facts?, 41 HOUS. L. REV. 713, 727-28 (2004) ("[I]f a once-unique designation loses its uniqueness ... it [is] harder for consumers to link that designation with a single source - the hallmark of a strong trademark. Under this theory, dilution increases the consumer's search costs by diffusing the identification power of that designation.");
91. Maureen A. O'Rourke, Defining theLimits of Free-Riding in Cyberspace: Trademark Liability for Metatagging, 33 GONZ. L. REV. 277, 307 n.114 (1997-1998) ("Dilution by blurring is concerned with preventing the erosion of the distinctiveness of the mark because of its use on non-related products. The 'noise' that this creates around the mark may increase consumer search costs.");
92. Michael Pulos, Comment, A Semiotic Solution to the Propertization Problem of Trademark, 53 UCLA L. REV. 833, 854-55, 859-61 (2006) (adopting the search-cost model to analyze dilution). Marketing researchers have picked up on the argument as well. See Robert A. Peterson et al., Trademark Dilution and the Practice of Marketing, 27 J. ACAD. MARKETING SCI. 255, 260-61 (1999) (proposing the cognitive-difficulty model of dilution as a way to understand the legal concept).
93. The United States Trademark Association Trademark Review Commission Report and Recommendations to USTA President and Board of Directors, 77 TRADEMARK REP. 375, 455 (1987);
94. accord Swann, Dilution Redefined, supra note 9, at 623.
95. See Morrin & Jacoby, supra note 49.
96. Id. at 268.
97. Id.
98. Id.
99. Id. at 269.
100. Id. at 269-70.
101. Id. at 269 tbl.1. Survey participants exposed to Heineken popcorn agreed that Heineken was a beer 82.8% of the time, compared to 92.1% who had not seen any Heineken ads and 90.0% who had been exposed to a Heineken beer ad. Id.
102. Id.
103. See id. at 269 & tbl.1.
104. Chris Pullig et al., Brand Dilution: When Do New Brands Hurt Existing Brands?, J. MARKETING, Apr. 2006, at 52,61.
105. See id. at 52, 61-62.
106. See 43(B)log, http://tushnet.blogspot.com/2007/10/santa-clara- dilution-conference_07.html (Oct. 7, 2007, 08:13 EST) (summarizing Laura Bradford's work on trademarks, emotion, and familiarity);
107. cf. supra notes 21, 27 and accompanying text (discussing the selling power of familiarity).
108. See Pullig et al., supra note 65, at 52, 61-62.
109. Ty Inc. v. Perryman, 306 F.3d 509, 511 (7th Cir. 2002).
110. Id.;
111. see also Robert G. Bone, Hunting Goodwill: A History of the Concept of Goodwill in Trademark Law, 86 B.U. L. REV. 547, 605 (2006) (endorsing a similar theory of tarnishment as interference with information transmission).
112. See supra notes 45-48 and accompanying text.
113. Alex Simonson suggests that the very existence of a similarly branded product in a divergent category will have tarnishing effects, even without poor quality: "[S]tudies indicate that as the perceived fit between the product categories (of the new brand and the original brand) decreases, the evaluation of the original product decreases, even if the brands are unrelated as to source ...." Alexander F. Simonson, How and When Do Trademarks Dilute: A Behavioral Framework to Judge "Likelihood" of Dilution, 83 TRADEMARK REP. 149, 167 (1993) (footnotes omitted). For specific discussion of this point, see infra subpart IV(D).
114. Related evidence comes from studies of racial stereotypes. It is well established that many people have difficulty associating words that describe people from a group (blacks, women, gays) with words that are inconsistent with stereotypes associated with that group; they are hundreds of milliseconds slower and make more mistakes when asked to do stereotype-inconsistent matching. But those reaction times can be altered - still unconsciously - by exposure to inconsistent information, such as images of revered African-Americans and reviled whites, in order to counteract racial bias. See Nilanjana Dasgupta & Anthony G. Greenwald, On the Malleability of Automatic Attitudes: Combating Automatic Prejudice with Images of Admired and Disliked Individuals, 81 J. PERSONALITY & SOC. PSYCHOL. 800, 800 (2001) (reporting that exposure to counterstereotypical images reduced the delay in implicit association with regard to stereotype-inconsistent matching);
115. see also Irene V. Blair et al., Imagining Stereotypes Away: The Moderation of Implicit Stereotypes Through Mental Imagery, 81 J. PERSONALITY & SOC. PSYCHOL. 828, 838 (2001) (applying a similar methodology to words associated with stereotypes about men and women, and reporting similar conclusions). Even with entrenched biases like those associated with race, it is possible to change reaction times by exposing people to negative images of whites and positive images of African-Americans - at least for a time. See Dasgupta & Greenwald, supra, at 807 (noting that the effect persisted for at least twenty-four hours after the initial experiment). Likewise, showing Tiffany's in distasteful situations might have similar effects, overwhelming past positive associations.
116. That arguably happened to Nike when labor activists targeted it even though its labor practices were standard in the athletic-apparel industry; other shoe producers benefited greatly from anti-Nike, anti-child-labor sentiment even while behaving much like Nike. See Jeff Manning, Rival Asks Nike to Join Fight Against Sweatshops, OREGONIAN, Sept. 27, 1996, at A1 (questioning Reebok's motives for publicly inviting Nike to join a factory-monitoring system);
117. see also UNC Students Gather to Protest Ties to Nike, CHI. SUN-TIMES, Nov. 9, 1997, at 28 (quoting some students who thought the protest unfairly targeted Nike since its competitors engaged in the same behavior).
118. 28 F.3d 769 (8th Cir. 1994).
119. Jacoby, Psychological Foundations, supra note 9, at 1059.
120. Id. at 1060.
121. Id. Twenty-two percent said the Michelob Oily ad made them less likely to buy Michelob, and twenty percent said they were less likely to drink it, compared to seven and five percent, respectively, of those who saw the Michelob Dry ad. Id. at 1061.
122. See Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 45 (2d Cir. 1994) (applying dilution to bar a competitor's parody of John Deere's logo in a comparative ad).
123. See Ty Inc. v. Perryman, 306 F.3d 509, 512 (7th Cir. 2002).
124. See id.
125. Id. at 511.
126. See id. at 512 (pointing out that because one prestigious name is as good as any other when used in an unrelated market, a trademark owner could not expect to earn any significant fees from licensing such use).
127. The amended federal law specifically covers dilution by blurring and dilution by tarnishment and would not include Posner's third category unless it were seen as a type of blurring. See Beebe, supra note 40, at 1164-65. Free riding might, however, still be covered by state dilution laws. Even though Posner was not sure whether such a cause of action was justified, at least one court has read Perryman to endorse all three types of dilution. See Best Vacuum, Inc. v. Ian Design, Inc., No. 04 C 2249, 2005 WL 1185817, at *13 (N.D. Ill. Jan. 18, 2005).
128. See, e.g., Trademark Dilution Revision Act of 2005: Hearing on H.R. 683 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 109th Cong. 43 (2005) (statement of Mark A. Lemley, Professor of Law, Stanford University), available at http://judiciary.house.gov/media/pdfs/printers/109th/98924.pdf ("The owners of some famous trademarks must contend with a host of uses that may not confuse consumers, but that draw on consumer recognition of the famous mark in a way that makes it more difficult over time for consumers to associate the mark with a consistent brand image, ultimately raising consumer search costs.");
129. Brief of Amicus Curiae the International Trademark Association in Support of Respondents at 15-16, Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (No. 01-1015), reprinted in 92 TRADEMARK REP. 1139, 1161-62 (2002) [hereinafter INTA Brief] (using Morrin & Jacoby, supra note 49, to support the proposition that creating any association with an existing mark necessarily dilutes it).
130. See Jacoby, Dilution in Light, supra note 9, at 19-20.
131. Bird, supra note 39, at 3;
132. see also Klerman, supra note 54, at 1764-65, 1764 & n.24 (discussing Morrin & Jacoby, though noting that their study was not designed to measure search costs);
133. Long, supra note 8, at 1058 n.112 (citing Morrin & Jacoby);
134. Maureen Morrin et al., Determinants of Trademark Dilution, 33 J. CONSUMER RES. 248, 248 (2006) (adopting a model of dilution as interference with recognition and recall);
135. Pullig et al., supra note 65, at 54 (same);
136. Swann, Dilution Redefined, supra note 9, at 610-11 (relying on Morrin & Jacoby);
137. Alexander Simonson, The Impact of Identical Brand Names on the Strength of New Brands and Original Brands: A Study of Brand Appropriation and Dilution 21-30 (1994) (unpublished Ph.D. dissertation, Columbia University) (on file with the Texas Law Review) (linking cognitive theory and legal concepts of dilution).
138. Bird, supra note 39, at 14.
139. As Jerre Swann puts it, "Now, happily, cognitive psychology confirms economic theory." Swarm, Dilution Redefined, supra note 9, at 614;
140. see also INTA Brief, supra note 85, at 14, reprinted in 92 TRADEMARK REP. 1139, 1160 (2002) ("Dilution, indeed, is now an empirically sustainable fact.");
141. Simonson, supra note 72, at 149-50 (arguing that dilution is an empirical phenomenon that can be proved using cognitive and behavioral evidence).
142. See Morse, supra note 10, at 408-10 (critiquing the use of brain-imaging evidence about adolescent neural development to justify the result in Roper v. Simmons, 543 U.S. 551 (2005), which held that the death penalty could not constitutionally be applied to juveniles under eighteen).
143. For a brief period, federal dilution law required a showing of actual dilution, not merely likely dilution. See Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433 (2003). Nonetheless, even actual dilution could be shown by demonstrating an effect on a significant portion of the exposed population, not a universal change. See id. at 433, 433-34 (discussing dilution as a "lessening" or "reduction]" of a mark's ability to identify a source, rather than a total destruction of that ability).
144. Morse, supra note 10, at 404.
145. Some consumers may enjoy the thrill of the chase and thus have a preference for some search costs, but the conventional story favors ease of search.
146. See, e.g., INTA Brief, supra note 85, at 23-24, reprinted in 92 TRADEMARK REP. 1139, 1170-71 (2002) (arguing that dilution law protects consumers by helping them conserve their attention);
147. Mark A. Lemley, The Modern Lanham Act and the Death of Common Sense, 108 YALE L.J. 1687, 1704 n.90 (1999) ("The information consumers can obtain and process is in part a function of how clear the association between mark and product remains in their minds; 'clutter' therefore imposes real costs on consumers."); Sheff, supra note 9, at 359, 379 (arguing that confusion and dilution law both protect against nonrational consumer responses that distort purchasing decisions);
148. Swann, Dilution Redefined, supra note 9, at 603-04 (arguing that because consumers' lives are so hectic, they need help from strong, unique signals that simplify messages, which dilution law protects);
149. Pulos, supra note 54, at 854-58 (accepting the consumer-protection argument for dilution);
150. cf. Long, supra note 8, at 1035 (discussing change injudicial explanations of dilution towards a consumer focus).
151. See Moseley, 537 U.S. at 429 ("Unlike traditional infringement law, the prohibitions against trademark dilution are not the product of common-law development, and are not motivated by an interest in protecting consumers.");
152. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 905 (9th Cir. 2002) ("[D]lution law protects only the distinctiveness of the mark, which is inherently less weighty than the dual interest of protecting trademark owners and avoiding harm to consumers that is at the heart of every trademark claim.").
153. See, e.g., Farley, supra note 38, at 1183 ("It sounds like what is being sought by the trademark bar is statutorily enforced mind control. Indeed, the International Trademark Association [INTA] testified before Congress that the injury in dilution is to the mark's ability to 'hold upon the public mind.'" (alteration in original) (citation omitted)).
154. See Ty Inc. v. Softbelly's, Inc., 353 F.3d 528, 535 (7th Cir. 2003) (opining that it was not clear "what question could be put to consumers that would elicit a meaningful answer" about dilution).
155. See, e.g., RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 25 cmt. f (1995) ("Direct evidence of a dilution of distinctiveness is seldom available because the harm at issue is a blurring of the mental associations evoked by the mark, a phenomenon not easily sampled by consumer surveys and not normally manifested by unambiguous consumer behavior.");
156. Jonathan E. Moskin, Dilution or Delusion: The Rational Limits of Trademark Protection, 83 TRADEMARK REP. 122, 123 (1993) (observing that most cases find dilution without "meaningful empirical proof);
157. Lynda J. Oswald, "Tarnishment" and "Blurring" Under the Federal Trademark Dilution Act of 1995, 36 AM. BUS. L.J. 255, 283 (1999) (noting that direct evidence of blurring is "typically difficult - indeed, some commentators would say nigh-well impossible - to obtain" (footnote omitted)).
158. Motrin & Jacoby, supra note 49, at 274.
159. See Kang, supra note 10, at 1525 ("Under threat conditions that police officers face, our racial schemas incline us to shoot Black men faster.");
160. see also ZALTMAN, supra note 14, at 114-15 (explaining that response latency times better predict behavior than explicitly stated beliefs).
161. Consider the following findings by Kevin Shapiro, who used MRIs to measure response times for completing sentences. A subject might see one pond, followed by many _, in which case the right answer would be ponds. "Surprisingly, the response times for tasks using concrete words (saying 'many wagons,' after seeing 'one wagon') were actually longer than for tasks using more abstract words (saying 'many sounds' after seeing 'one sound') - 1.8 percent longer with nouns and 3.8 percent longer with verbs." Elizabeth Gudrais, Neurons Sort Nouns, HARV. MAG., July-Aug. 2006, at 15, 16 (discussing Kevin A. Shapiro et al., Cortical Signatures of Noun and Verb Production, 103 PROC. NAT'L ACAD. SCI. 1644 (2006)). This is surprising because longer response times supposedly indicate greater demands on cognitive processing. Yet mere is no indication that we have more trouble using concrete words than abstract ones in real life, and in fact people are generally better at recognizing concrete words than abstract words. See Simon Dennis & Michael S. Humphreys, A Context Noise Model of Episodic Word Recognition, 108 PSYCHOL. REV. 452, 464 (2001) (suggesting that concrete words are more readily recognizable because they appear in fewer contexts).
162. Morrin & Jacoby, supra note 49, at 269 tbl.1.
163. Pullig et al., supra note 65, at 61-62.
164. See Klerman, supra note 54, at 1765 (arguing that an increase of 125 milliseconds, as produced in the Morrin and Jacoby study, is not economically significant). Pullig et al., however, found statistically significant effects on brand consideration and choice from exposure to dilutive ads even after a five-day delay. Pullig et al., supra note 65, at 63-64. These results are the most persuasive of the various academic studies attempting to measure dilution, though they still suffer from some of the flaws discussed infra.
165. See. e.g., DAVID W. BARNES, STATISTICS AS PROOF: FUNDAMENTALS OF QUANTITATIVE EVIDENCE 143-44 (1983) (discussing the difference between statistical and practical significance).
166. See Ty Inc. v. Perryman, 306 F.3d 509, 511 (7th Cir. 2002) (stating only that the dilution would cause consumers to "incur as it were a higher imagination cost");
167. see also Austin, supra note 9, at 891 n.276 (arguing that Posner failed to identify harm from a higher imagination cost, given that we routinely tolerate the imagination cost of multiple references, such as the numerous trademark and nontrademark uses of apple despite the famous Apple trademark);
168. id. at 895 (arguing that consumers may benefit from thinking harder, at least if the thinking is fun). But see Pulos, supra note 54, at 860 ("[T]he imagination costs the consumer encounters toll not only the consumer, but the market as a whole. Simply put, any amount of time a consumer spends 'thinking harder' about the meaning of a mark is time she could be spending buying something else or otherwise contributing to society."). Setting aside Pulos's equation of buying with "contributing to society," it has yet to be established that people are otherwise inert while they process information. Often enough, they may continue walking down store aisles or engaging in other activity. Or they may be sitting watching television, in which case their attention may be diverted from the next ad while they are struggling to process the preceding ad. Whether this represents social loss is hard to say.
169. See Roger W. Shuy, Linguistic Thoughts on Trademark Dilution 5-6 (2003) (unpublished manuscript, on file with the Texas Law Review).
170. See Rene Zeelenberg et al., Semantic Context Effects and Priming in Word Association, 10 PSYCHONOMIC BULL. & REV. 653, 653, 656 (2003) (finding that when semantically ambiguous words were disambiguated with context, such as organ with music, the words were far less likely to subsequently cue inconsistent meanings, such as organ with body part). This complicates the cognitive model's claim that phonological similarities between marks lead to interference with the meaning of both marks.
171. In fact, some psychologists argue that the basic spreading-activation model on which the cognitive theory of dilution is based misconceives how memory is actually constructed in the mind; current context determines which past experiences will be recalled and deemed relevant. E.g., Antonia Kronlund et al., Consumer Memory, Fluency, and Familiarity, in THE HANDBOOK OF CONSUMER PSYCHOLOGY (Curtis P. Haugtvedt et al. eds., forthcoming 2008) (manuscript at 26-37, on file with the Texas Law Review).
172. You might be asked "LaGuardia or JFK?" - another question that depends on your understanding the referent. You are not being asked for political or historical opinions.
173. Shuy, supra note 107, at 6. Shuy does think dilution might be possible in context-free environments. See id.;
174. see also Simonson, supra note 72, at 156 (observing that after the addition of Sony bleach to the marketplace, "[t]he issue is whether, at the time of exposure to the brand name, there is sufficient cuing whereby the individual would know perceptually to which of the two Sony products the word Sony is referring");
175. Jerre B. Swarm, Sr., Dilution Redefined for the Year 2000, 37 HOUS. L. REV. 729, 759 (2000) ("Dilution is . . . the difference between a brand with a meaning substantially in the abstract, and a brand with a substantial meaning only in context or after cueing.").
176. See Peterson et al., supra note 54, at 259-63.
177. See id. at 261. Half of the brands with typicality over 90% showed low levels of dominance. See id. at 262.
178. Cf. Joan Meyers-Levy, The Influence of a Brand Name's Association Set Size and Word Frequency on Brand Memory, 16 J. CONSUMER RES. 197, 202-03 (1989) (finding that association-set size has little effect on recognition tasks, as compared to recall).
179. See Klerman, supra note 54, at 1765-66;
180. see also Dennis & Humphreys, supra note 101, at 463 (finding that recall and recognition differ in the effects of time and interference by other words and that recognition persists when recall fails).
181. Klerman, supra note 54, at 1765;
182. see also Daniel J. Howard et al., The Effects of Brand Name Similarity on Brand Source Confusion: Implications for Trademark Infringement, 19 J. PUB. POL'Y & MARKETING 250, 261 (2000) (finding that in situations of high involvement, as when a purchase actually turns on a decision, consumers process more brand-related information than when they are just looking at ads).
183. Morrin and her colleagues subsequently tested the effects of logos but still did not present actual ads; they measured dilution by prompting study participants with brand names, without any product or category information. See Morrin et al., supra note 87, at 251-52.
184. Steve Hartman, Brand Equity Impairment - The Meaning of Dilution, 87 TRADEMARK REP. 418,429-30 (1997).
185. Id. at 429.
186. Id.
187. Id. at 430.
188. Morrin & Jacoby, supra note 49, at 268-69.
189. See id. at 269, 275 (describing and giving examples of the ads presented in the study). The Pullig et al. studies, which otherwise substantially improved on the Morrin and Jacoby studies, also used very stark ads, containing only a brand name, a product category, and two claims (along with a prominent disclaimer for the dilution test ads). See Pullig et al., supra note 65, at 57 ("We told participants that the advertisements were depicted in this simple fashion because we were interested in their reactions to the informational content of the advertisements." (emphasis added)). Likewise, Simonson tested reactions to a typed list of product names and categories without further description of the new products. See Simonson, supra note 87, app. c at 120-21, app. d at 122-27 (reproducing the list of new brands and questions presented to respondents in Simonson's study). Context, imagery, and other cues were missing. Simonson's questions asked respondents how they would feel about the original brand after learning of a new, unrelated product using the same name. See id. app. d at 124-25. He acknowledged that the testing context, including immediate contrast with the original brand and lack of price and quality information, limited the validity of his results. See id. at 87-88 (detailing the limitations of the methodology).
190. See Morrin & Jacoby, supra note 49, at 275 (indicating that the study's stimuli included language such as "Note: Heineken popcorn is NOT associated with the makers of Heineken beer").
191. Id. at 268-69;
192. see also Pullig et al., supra note 65, at 57-58, 63-64 (finding that only very small percentages of respondents, from 1.2% to 3.6%, failed to report the disclaimers);
193. Simonson, supra note 87, at 125 (using a detailed disclaimer that "[e]ach of the products . . . bears no relation to any know[n] products that you may be familiar with. As an example, if you see below 'Mercedes-Benz CD player,' it has NO relation to the familiar Mercedes-Benz automobiles other than name. These types of situations do arise. Some examples you may be familiar with are Ritz crackers and Ritz hotels .. .").
194. See, e.g., Jacob Jacoby & Robert Lloyd Raskopf, Disclaimers in Trademark Infringement Litigation: More Trouble than They Are Worth?, 76 TRADEMARK REP. 35, 36, 54-58 (1986) (arguing that lack of exposure, information loss, and comprehension failure render disclaimers ineffective);
195. Gita Venkataramani Johar & Carolyn J. Simmons, The Use of Concurrent Disclosures to Correct Invalid Inferences, 26 J. CONSUMER RES. 307, 320 (2000) (arguing that because of cognitive-processing limitations, "obviously effective disclosures (e.g., those that are encoded, those that are explicit, etc.) are often ineffective");
196. Mitchell E. Radin, Disclaimers as a Remedy for Trademark Infringement: Inadequacies and Alternatives, 76 TRADEMARK REP. 59, 61-67 (1986) (discussing failures of disclaimers in actual market conditions).
197. Swann, supra note 111, at 755 (alterations in original) (footnotes omitted) (quoting Meyers-Levy, supra note 114, at 198 and Moskin, supra note 98, at 136). All of those quotation marks are there for a reason - Swann is extrapolating from a study that itself extrapolates from nontrademarks to trademarks. Kodak and Cheer are his additions, and they are problematic, illustrating the difficulty of transferring basic research to substantive legal conclusions. For Kodak, "distinctively encoded" is not the same as famous, though it does resemble the legal concept of fanciful marks, which are coined words that are unique to the brand. Uniqueness itself is not necessarily an aid to memory. Consider some fanciful drug names: Xalatan, Cerebyx, Symbyax. Unless you know more about them, their phonological uniqueness has little meaning and in fact may make them forgettable. For Cheer, Swann has skipped a number of related meanings. The noun alone can mean lightness of spirits, a source of joy, a shout of approval, a rehearsed phrase or jingle shouted in unison, and festive food and drink (not to mention the "Bronx cheer"), and the verb has both transitive and intransitive forms. See AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 317 (4th ed. 2000). In any event, the number of dictionary definitions is not the same as the association-set size - a technical term. See infra notes 128-30 and accompanying text. I belabor the point because we have no particular idea how many associations it takes to give a word a "large" or "small" set, especially when we are comparing nontrademark apples to trademark Orangina.
198. See Meyers-Levy, supra note 114, at 205.
199. See Douglas L. Nelson et al., Interpreting the Influence of Implicitly Activated Memories on Recall and Recognition, 105 PSYCHOL. REV. 299, 300 (1998).
200. See Meyers-Levy, supra note 114, at 201-04.
201. Id. at 198.
202. See id. There is already a bit of a conflict here with the idea that trademarks exist to make things easy for consumers.
203. Id. at 198-99.
204. See id. at 199 ("[E]ncoding of concepts in the association set is restricted to only those items that meaningfully yet distinctively relate the word with other relevant information presented in the context." (citation omitted)).
205. Id.
206. Id.
207. Swann, supra note 111, at 755.
208. Meyers-Levy, supra note 114, at 200.
209. See id. at 201 (noting that crisp, moose, and bribe have large set sizes, and cork, shove, and dusk have small set sizes).
210. See id. (noting that yard, lake, and room have large set sizes, and cloud, day, and round have small set sizes).
211. Id.
212. Id. at 201-02.
213. Id. at 202.
214. Id. at 202, 205.
215. Id.
216. Using invented brands with common nouns may have distorted the results in other ways. Like proper names, recognized brands are processed differently in the brain than ordinary nouns, though the ultimate implications of that finding are unclear. See Possidonia F.D. Gontijo et al., How Brand Names Are Special: Brands, Words, and Hemispheres, 82 BRAIN & LANGUAGE 327, 327 (2002) (finding processing of brand names to be less lateralized within the brain than that of common nouns).
217. See Global English, http://www.audiencedialogue.net/english.html (citing GEOFFREY LEECH ET AL., WORD FREQUENCIES IN WRITTEN AND SPOKEN ENGLISH (2001));
218. see also British National Corpus, http://www.natcorp.ox.ac.uk (providing a searchable collection of written and spoken language). Mark Lemley suggested to me that word frequency in advertising contexts will likely be different from frequency in other areas. I have found no evidence on this one way or another, and I have no reason to think that frequency-mediated processing of words differs in relevant ways depending on whether or not the words appear in an ad. Of course, identifying a text as an ad affects the level of attention a consumer is likely to give to it, but there is no indication that this invalidates accepted frequency measures.
219. INTERBRAND & BUSINESSWEEK, BEST GLOBAL BRANDS 2006: A RANKING BY BRAND VALUE 11-12 (2006), available at http://www.ourfishbowl.com/ images/surveys/BGB06Report_ 072706.pdf.
220. The American National Corpus (ANC) is not a random sample, but it is the best available corpus for American English. The second release of the ANC contains 22,393,704 words by one measure (one could also use a higher number). See American National Corpus, Second Release Contents, http://americannationalcorpus.org/SecondRelease/contents.html. To get rough estimates of frequency per million, I divided the number of instances of a word in the second release by 22.39. In some cases, I aggregated variants (467 coke, 11 cokes, 7 coca-cola), but given the numbers at issue, it did not make a difference. Aside from microsoft, by far the highest frequency terms in the top forty brands were ford/fords (roughly 44 uses per million words), apple/apples (37 per million), and disney/disneyland/disneyworld (38 per million), the first two of which plainly include some nonmark uses, such as personal names and generic words. Among the remaining top forty brands with measurable frequencies, the average frequency was about 7 per million. (I did not measure a few multiword brands, such as Goldman Sachs.)
221. Depending on how one counts the number of words in the second release, Microsoft's frequency is between 78 and 91 per million. The ANC contains a large number of articles from the Microsoft-owned online magazine Slate and the Biomed database; in the latter case, most instances of Microsoft appear to be indications that a table was prepared using Microsoft Excel. Without the Slate articles (but including Biomed), Microsoft's frequency in the written portion of the ANC is slightly over 14 per million words. Email from Keith Suderman, Research Associate, American National Corpus, to Rebecca Tushnet, Professor, Georgetown University Law Center (Nov. 1, 2006, 11:06 EST) (on file with the Texas Law Review) (using data from the second release of the ANC).
222. Sheff, another dilution proponent, makes the same mistake as Swann in discussing word-frequency research. See Sheff, supra note 9, at 363 ("Studies have found that low-frequency words - those uncommon in ordinary usage - are more easily recognized when encountered after an initial exposure than are high-frequency words. . . . Thus, one reason the law may be more protective of unique marks is that - absent any other measure of consumer reaction to a trademark - such marks, once encountered, may more likely be recognized than non-unique marks . .. ."). Sheff conflates low-frequency words (like crisp, moose, bribe, cork, shove, and dusk, see Meyers-Levy, supra note 114, at 201) with uncommon words (which crisp et al. surely are not in the lay understanding Sheff invokes), then further conflates low frequency with uniqueness, even though uniqueness is determined by the extent to which a term refers to only one thing rather than by the number of times people use it to mean that thing.
223. See Antonia Kronlund, Remembering Words and Brand Names After a Perception of Discrepancy 59-60 (Spring 2006) (unpublished Ph.D. dissertation, Simon Fraser University), available at http://ir.lib.sfu.ca/handle/1892/ 2658 (testing brands including Camel and Marlboro for cigarettes, Levis and Wrangler for jeans, Coke and Pepsi for soda, and Tide and Sunlight for detergent);
224. see also Gontijo et al., supra note 146, at 331, 335 (finding that familiar brand names were recognized more slowly and less accurately than common nouns with frequencies of 100-160 per million and that capitalization increased speed of recognition);
225. Antonia Kronlund & Bruce W.A. Whittlesea, Remembering Words and Brands After a Perception of Discrepancy 30 (Nov. 20, 2006) (unpublished manuscript, on file with the Texas Law Review) (finding that brand names are recognized through recollection, like low-frequency words).
226. In the end, association-set size may simply not be all that important in real-world settings. Other studies suggest that context moderates any effect of association-set size. See Nelson et al., supra note 129, at 301 ("When targets are presented within a second or so of key context words during the study trial, [target set size] effects are nearly eliminated."). A switch in attention to another task for a few minutes does the same, meaning that exposure to diluting marks as part of the various activities of daily life, instead of in time-limited lab studies, might not cause the posited effects. See id. at 301-02, 308 (observing that several minutes spent multiplying numbers can eliminate target-set-size effects).
227. Familiarity increases likability, among other things. See Sheff, supra note 9, at 365 (stating that research shows that increased exposure leads to increased preference for a stimulus);
228. sources cited supra note 27;
229. cf. Laura R. Bradford, Parody and Perception: Using Cognitive Research to Expand Fair Use in Copyright, 46 B.C. L. REV. 705, 743, 743-44 (2005) ("During initial introduction to a brand or message, frequency of exposure increases familiarity and likeability."). Bradford points to research indicating that oversaturation eventually reverses the likability effect, as people get annoyed by the millionth repetition of an ad. See id. at 743-44. Trademark owners may deal with this effect by changing their ad campaigns. People get fed up with repetitive scripts, but they do not get tired of Coke in the same way.
230. See Hayden Noel, The Spacing Effect: Enhancing Memory for Repeated Marketing Stimuli, 16 J. CONSUMER PSYCHOL. 306, 307-08 (2006) ("[T]he encoding variability hypothesis states that the more variable the first and second presentations of a stimulus, the more paths there are to retrieval at test, and so the more likely it is that the stimulus will be recalled. For example,. . . people had better recall of a brand name after seeing two ads for the same brand than after viewing two repetitions of the same ad." (citation omitted));
231. Rik Pieters et al., Breaking Through the Clutter: Benefits of Advertisement Originality and Familiarity for Brand Attention and Memory, 48 MGMT. SCI. 765, 765 (2002) (finding that the best advertisements combined familiarity and originality). The source of backlash, as Bradford notes, is "unvaried" exposure. Bradford, supra, at 744. Variety is the spice of advertising, and dilutive uses are likely to provide variety.
232. See Meyers-Levy, supra note 114, at 197 (noting that American is a memorable brand for airlines because of the diverse meaningful concepts already associated with it). Priming generally helps recall and production. That is, if people see a target word, then later are given related words as cues and asked to say the first word that comes to mind, they are more likely to respond with the target than if they have not been initially primed with the target. See H. Shanker Krishnan & Dipankar Chakravarti, Memory Measures for Pretesting Advertisements: An Integrative Conceptual Framework and a Diagnostic Template, 8 J. CONSUMER PSYCHOL. 1,7(1999) (finding that priming works with both semantic and phonological cues like word fragments);
233. Douglas L. Nelson & Leilani B. Goodmon, Experiencing a Word Can Prime Its Accessibility and Its Associative Connections to Related Words, 30 MEMORY & COGNITION 380, 380 (2002) (noting that priming has been observed under a wide variety of conditions involving free association);
234. René Zeelenberg et al., Priming in a Free Association Task as a Function of Association Directionality, 27 MEMORY & COGNITION 956, 959 (1999) (observing that priming in free association was dependent on the existence of an association between a target and a cue). Priming also works with features like colors and pictures. See Johar et al., supra note 27, at 143 (noting that background pictures and colors on a Web page prime product choice, though consumers are not aware of this). Priming effects are greater for low-frequency words (like trademarks), for words with smaller sets of associates, and for words whose associates are also associated with each other, so that there are dense interconnections. Nelson & Goodmon, supra, at 391. Some of this is consistent with the cognitive theory of dilution, but it is notable that priming effects exist even when association sets are large and thinly connected - even, that is, under conditions approximating dilution.
235. See Hartman, supra note 118, at 424 (observing that the second use of a mark in a different product class may serve as a reminder of the first mark);
236. Maureen Morrin, The Impact of Brand Extensions on Parent Brand Memory Structures and Retrieval Processes, 36 J. MARKETING RES. 517, 518 (1999) (finding that brand extensions can improve retrieval of the core brand);
237. Chris Brown, Comment, A Dilution Delusion: The Unjustifiable Protection of Similar Marks, 72 U. CIN. L. REV. 1023, 1038 (2004) ("Arguably, use of a similar brand name could actually benefit the original brand by activating the memory of the original brand in a viewer's working memory.");
238. cf. Pullig et al., supra note 65, at 60-61 (finding reinforcement and faster recognition times for the original brand after exposure to an identical, unrelated brand with similar product attributes or in a similar category, though finding inhibition when product attributes and categories were substantially different). If consumers are not paying much attention, they are likely to be primed by superficial resemblances. See, e.g., Chris Janiszewski, Preattentive Mere Exposure Effects, 20 J. CONSUMER RES. 376, 376 (1993) (suggesting that incidental exposure to logos, brand names, or pictures of objects may lead to more favorable product evaluations even when consumers do not notice the initial presentation);
239. Dominika Maison et al., Predictive Validity of the Implicit Association Test in Studies of Brands, Consumer Attitudes, and Behavior, 14 J. CONSUMER PSYCHOL. 405, 405 (2004) (reviewing previous findings that exposure to ads influences brand attitudes even when consumers have no memory of the exposure and even when they are explicitly trying to avoid the products depicted in the ads).
240. See Joel H. Steckel et al., Dilution Through the Looking Glass: A Marketing Look at the Trademark Dilution Revision Act of 2005, 96 TRADEMARK REP. 616, 635 (2006). Steckel et al. explain their "surprising" results as follows: "People who hold strong opinions are likely to examine inconsistent information in a biased manner. The salience of the inconsistency leads them to counterargue the inconsistent information. This leads to the original opinion being even more strongly held than before the information was presented." Id. They argue, however, that because the cognitive model of dilution is true, it must be the case that repeated exposures to the Hyatt tattoo parlor would have had the opposite effect. See id. ("Only upon repetition, can the salience of the allegedly diluting stimulus potentially subside and the corresponding counterarguing cease. The gradual whittling away process can begin since the stimulus now travels under the radar.").
241. See Zeelenberg et al., supra note 108, at 657 (citing studies indicating that priming typically increases the probability of producing a primed word by 5%-10% over baseline);
242. see also Nelson & Goodmon, supra note 155, at 393-94 (observing that words that are most likely to come to mind in response to cues show limited priming because the baseline probability that they will be produced without priming is already so high).
243. See generally Nelson & Goodmon, supra note 155 (reporting the results of experiments showing greater priming effects for low-frequency words, as compared to high-frequency words, due at least in part to increases in activation).
244. See, e.g., Russell H. Fazio et al., On the Development and Strength of Category-Brand Associations in Memory: The Case of Mystery Ads, 1 J. CONSUMER PSYCHOL. 1, 10 (1992) ("[Our] findings are consistent with a growing literature that implicates cognitive effort in advertising effectiveness. . . . [Other research] found self-generated conclusions from print ads were more accessible (and persuasive) than identical conclusions stated explicitly in the ad."). See generally HENRY JENKINS, CONVERGENCE CULTURE: WHERE OLD AND NEW MEDIA COLLIDE (2006) (discussing the powerful emotional and often financial investments fans make in their favorite products, spending hours investigating and discussing details).
245. See, e.g., Mark R. Forehand & Kevin Lane Keller, Initial Retrieval Difficulty and Subsequent Recall in an Advertising Setting, 5 J. CONSUMER PSYCHOL. 299, 318-19 (1996) (finding that ads that are initially very easy to remember do not trigger extensive processing and are harder to remember in the long run);
246. Noel, supra note 154, at 308 (discussing mental reconstruction's positive effects on long-term memory);
247. Henrik Sjödin & Fredrik Törn, When Communication Challenges Brand Associations: A Framework for Understanding Consumer Responses to Brand Image Incongruity, 5 J. CONSUMER BEHAV. 32, 38 (2006) ("Incongruity can be seen as challenging and interesting in the context of well-known brands that often may suffer from boredom. ... [A] challenging ad will cause cognitive elaboration and thoughts about how the ad fits with the established brand image. This elaboration may increase the salience of the brand in memory, which in turn would lead to enhanced brand attitude." (citations omitted));
248. Kronlund, supra note 152, at 19-20, 23 (finding that perceptions of discrepancy resolved by more information identifying a brand enhance later recognition of the brand). In a more unusual illustration of the trade-off between ease of processing and ultimate accessibility of information, researchers found that using an untrustworthy spokesperson caused consumers to remember ad claims faster than using a trustworthy spokesperson, apparently because the untrustworthy spokesperson triggered more evaluation of the message. The attitudes toward the ad claims were just as positive for both sets of spokespeople, but the untrustworthy spokesperson created stronger and more accessible attitudes.
249. See Joseph R. Priester & Richard E. Petty, The Influence of Spokesperson Trustworthiness on Message Elaboration, Attitude Strength, and Advertising Effectiveness, 13 J. CONSUMER PSYCHOL. 408 (2003).
250. As Forehand and Keller found: [T]he more time a participant needed to successfully retrieve an item at an initial trial, the more likely it was that the item would be recalled at a later trial. .. . [D]ifficult retrieval attempts provide an opportunity for a second encoding of the to-be-recalled information.... By increasing overall retrieval effort and intensity, this second encoding should strengthen the existing retrieval routes to the item and therefore increase the probability of recall at delay. . . . [D]ifficult initial retrievals also increase the probability that unusual retrieval routes will be used and reinforced. Forehand & Keller, supra note 161, at 304.
251. See Jordache Enters., Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1489, 1489-90 (10th Cir. 1987) ("[P]arody tends to increase public identification of a plaintiff's mark with the plaintiff." (quoting Jordache Enters., Inc. v. Hogg Wyld, Ltd., 625 F. Supp. 48, 57 (D.N.M. 1985));
252. see also Hormel Foods Corp. v. Jim Henson Prods., Inc. 73 F.3d 497, 506 (2d Cir. 1996) (adopting the reasoning in Jordache);
253. Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 422 (S.D.N.Y. 2002) (same) ("[T]he joke itself reinforces the public's association of the mark with the plaintiff." (alteration in original) (quoting Robert C. Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158, 189));
254. Yankee Publ'g Inc. v. News Am. Publ'g Inc., 809 F. Supp. 267, 282 (S.D.N.Y. 1992) ("[T]he use of famous marks in parodies causes no loss of distinctiveness, since the success of the use depends upon the continued association of the mark with the plaintiff." (quoting Denicola, supra, at 188)).
255. See Brown, supra note 156, at 1038 ("'[E]laboration' is a tool used to enhance memory by having the subject elaborate on, or build on, the information to be remembered. Elaboration can take different forms. 'Nonmeaningful elaboration,' such as generating rhymes for each word on a list to be memorized or even reading sentences upside-down, has been found to improve memory by requiring more elaborate processing from the subject." (footnote omitted) (quoting ANDERSON, supra note 46, at 167, 173)). Other studies show that a rhyme, such as pick/tick, can facilitate word recognition and distinction.
256. See Sevald & Dell, supra note 47, at 110. Rhyming words also produce better performance on short-term-memory tasks compared to phonologically similar but nonrhyming words. See Anthony B. Fallon et al., Phonological Similarity and Trace Degradation in the Serial Recall Task: When CAT Helps RAT, But Not MAN, 34 INT'L J. PSYCHOL. 301, 301 (1999).
257. Brown, supra note 156, at 1038-39.
258. Clever proponents of dilution theories slide between the individual and the group when discussing brands as shortcuts that only work if their images remain consistent. A trademark can have a consistent meaning to one individual that differs from its consistent meaning to another. Easy examples come from brands popular with parents that are therefore unpopular with their children and from the rise of "my" brands like MySpace, which offer a personalized experience for each user.
259. See ROGER SHUY, LINGUISTIC BATTLES IN TRADEMARK DISPUTES 102-04 (2002) (describing the results of consumer surveys carried out by McDonald's for use at trial in Quality Inns International, Inc. v. McDonald's Corp., 695 F. Supp. 198 (D. Md. 1988)).
260. See Zeelenberg et al., supra note 155, at 957.
261. See Hall, supra note 15, at 25 ("Many, possibly most, target audiences, including the heavy-category users who are critical to the success of most established brands, will be exposed to the advertising in a continuous loop between post-experience and pre-experience, depending on purchase cycles and personal behavior.. . . [T]he advertising will act both to organize memory of the last usage/purchase experience and to frame perception of the next experience."). Although the Morrin and Jacoby study never exposed participants to ads for both the senior and junior user, it is notable that the Godiva ad increased response time and increased recognition accuracy by over 20% compared to the no-relevant-ad control, whereas Dogiva decreased accuracy by only 5%. Morrin & Jacoby, supra note 49, at 269 tbl.1. (For Heineken and Hyatt, exposure to reinforcing ads actually decreased accuracy compared to no exposure, but not by much. Id.)
262. See Morrin & Jacoby, supra note 49, at 272, 269, 272 (explaining that Hyatt did not appear to have been harmed by exposure to certain trademark-diluting advertisements and noting that "some brands, such as Continental Airlines, are so familiar to consumers . . . that recall of their original product category is largely immune to trademark dilution");
263. Peterson et al., supra note 54, at 266 (discussing the continued strength of Mead Data's Lexis mark despite Toyota's Lexus);
264. Simonson, supra note 72, at 163 (explaining that the more dominant a brand is, the less easily consumers learn new associations);
265. cf. Terence A. Shimp et al., A Program of Classical Conditioning Experiments Testing Variations in the Conditioned Stimulus and Context, 18 J. CONSUMER RES. 1, 9 (1991) (explaining that consumers' attitudes towards high-equity brands are more resistant to change than their attitudes towards low-equity brands). Interestingly, Swann and others cannot agree on whether Hyatt resists dilution because it is so strong or because it is so weak. See Swann, Dilution Redefined, supra note 9, at 610 n.165 ("The explanation, I would submit, is that Hyatt is only modestly unique: it is a 'personal name' that the district court found to be in 'reasonably common' use, and may 'already have too many meanings to resist one more.'" (quoting Swann, supra note 111, at 865)). Another of Jacoby's examples of dilution can also be read as an affirmation of strength. Jacoby did a dilution survey in Pebble Beach Co. v. Tour 18 I, Ltd., 942 F. Supp. 1513, 1547 (S.D. Tex. 1996), aff'd as modified, 155 F.3d 526 (5th Cir. 1998), though it was ultimately decided on confusion grounds. He claimed to have found dilution because about three-fourths of people surveyed, all of whom had gone to Tour 18's golf course, now thought that there were two different places to play a "Pebble Beach hole," Pebble Beach and Tour 18's hole mimicking the layout of a hole at Pebble Beach. Jacoby, Psychological Foundations, supra note 9, at 1058;
266. Jacoby, Dilution in Light, supra note 9, at 32. Yet among those diluted respondents, 87% mentioned it as one of the five most famous golf courses in response to an open-ended question, and 99.6% ranked it in the top
267. when specifically asked about it. Id. at 28. (The corresponding numbers for another plaintiff, Pinehurst #2, were 25% and 92%. Id.) Jacoby found blurring because Tour 18's customers think there are two places to play a "Pebble Beach hole," but the survey specifically asked them if they knew a place outside California that identifies its hole as a "Pebble Beach hole." Jacoby, Psychological Foundations, supra note 9, at 1057-58. In other words, the survey asked for retrieval of the junior use but showed no evidence of any effect on the senior user's brand.
268. See infra note 176 (discussing studies that demonstrate the robustness of brand concepts despite later-acquired negative information).
269. Even Jerre Swann, a great proponent of the cognitive theory, implicitly acknowledges this when he discusses the way that consumers in low-attention circumstances make broad recognition judgments so they don't have to waste time on specific processing. See Swann, Interdisciplinary Approach, supra note 9, at 962 (observing that consumers categorize brands based on a quick assessment of a few features in order to enhance efficiency in processing information, even if some details do not exactly match).
270. See, e.g., N.Y. Stock Exch. v. N.Y., N.Y. Hotel, LLC, 293 F.3d 550, 558 (2d Cir. 2002) (finding that a reasonable trier of fact could conclude that a casino's humorous use of a modified New York Stock Exchange mark would tarnish the Stock Exchange's reputation);
271. Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 507-08 (2d Cir. 1996) (holding that a wild-boar character called Spa'am in a Muppet film was a parody that did not tarnish the Spam trademark);
272. Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 44-45 (2d Cir. 1994) (holding that a competitor's mocking animation of a small, frightened deer diluted the John Deere mark).
273. 15 U.S.C.A. § 1125(c)(3) (West Supp. 2007).
274. Cf. Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 268-69 (4th Cir. 2007) (rejecting Louis Vuitton's claim that dog beds and toys using the mark "Chewy Vuiton" caused tarnishment because there was no evidence that the products were likely to cause harm to Louis Vuitton's reputation).
275. See, e.g., Stephen J. Hoch, Product Experience Is Seductive, 29 J. CONSUMER RES. 448, 451 (2002) ("Using a simple associative learning procedure, [researchers] showed that, in a few trials, people learn brand associations that later block the learning of new predictive attribute associations.");
276. Deborah Roedder John et al., The Negative Impact of Extensions: Can Flagship Products Be Diluted?, J. MARKETING, Jan. 1998, at 19, 20 ("[B]eliefs about the flagship product [of a strong brand] are 'encapsulated' and extremely resistant to change ....");
277. id. at 27 (finding that even weakly held beliefs about flagship products resisted change because of the overall strength of the beliefs associated with the brand). (In John et al.'s research, however, some nonflagship products, such as minor Johnson & Johnson toiletries, were affected by spillover from bad product-line extensions. Id. at 24.) Sheff, a dilution proponent, invokes the robustness of initial impressions to argue that trademarks need dilution protection: "[O]nce a stimulus has been tagged with affective value, later contrary information about the stimulus's actual meaning or significance will often be insufficient to significantly alter the affective response." Sheff, supra note 9, at 361;
278. see id. at 362 ("By altering the affect pool for a given trademark, uses that generate negative associations lessen the chance that consumers will choose products bearing that trademark."). But dilution is always a second comer, and so by this very logic, dilutive uses will always have significant difficulty displacing original responses.
279. See Amna Kirmani et al., The Ownership Effect in Consumer Responses to Brand Line Stretches, J. MARKETING, Jan. 1999, at 88, 99 (finding that signaling a difference between the main brand and the extension prevents dilutive effects on the main brand);
280. Sandra J. Milberg et al., Managing Negative Feedback Effects Associated with Brand Extensions: The Impact of Alternative Branding Strategies, 6 J. CONSUMER PSYCHOL. 119, 136-37 (1997) (finding that subbranding may prevent negatively evaluated brand extensions from harming the parent brand);
281. Sjödin & Törn, supra note 161, at 37 ("Even though consumers elaborate on brand image incongruity, they do not necessarily change their beliefs about the brand, since mature brands resist change. ... If information has any impact on previous knowledge at all, it will typically be 'subtyped' and treated as an exception rather than cause a full revision of the previous knowledge.");
282. Nicole L. Votolato & H. Rao Unnava, Spillover of Negative Information on Brand Alliances, 16 J. CONSUMER PSYCHOL. 196, 201 (2006) ("This research suggests that a host brand may generally be quite impervious to negative publicity surrounding its partner brand; the host brand was only affected when participants were led to believe that the host knew of and condoned the partner's behavior.");
283. Judith H. Washburn et al., Co-branding: Brand Equity and Trial Effects, 17 J. CONSUMER MARKETING 591, 600 (2000) ("Our belief that a high equity brand would be denigrated by its pairing with a low equity brand was not supported. It seems that the rich association set that accompanies a high equity brand may insulate it from a less favorable association.").
284. Sheff, supra note 9, at 369 (footnotes omitted) (emphasis added).
285. Indianapolis Colts, Inc. v. Metro. Balt. Football Club Ltd. P'ship, 34 F.3d 410, 416 (7th Cir. 1994).
286. See, e.g., GLADWELL, supra note 1, at 180-81 (stating that asking "why" questions distorts respondents' reactions, making their answers unreliable gauges for ordinary situations where much processing is consciously inaccessible (citing Timothy D. Wilson & Jonathan W. Schooler, Thinking Too Much: Introspection Can Reduce the Quality of Preferences and Decisions, 60 J. PERSONALITY & SOC. PSYCHOL. 181 (1991)));
287. id. at 64-71 (stating that making people explain their choices produces divergence between previously expressed preferences and analyzed preferences);
288. cf. id. at 119-20 (stating that conscious cognition decreases the accuracy of witness identification because words displace visual memory (citing Chad S. Dodson et al., The Verbal Overshadowing Effect: Why Descriptions Impair Face Recognition, 25 MEMORY & COGNITION 129 (1997) and Jonathan W. Schooler et al., Thoughts Beyond Words: When Language Overshadows Insight, 122 J. EXPERIMENTAL PSYCHOL.: GEN. 166 (1993))).
289. GLADWELL, supra note 1, at 181.
290. See id. at 155;
291. ZALTMAN, supra note 14, at 9-11.
292. GLADWELL, supra note 1, at 186;
293. accord Hall, supra note 15, at 30 ("[In tests of recall and tests of what messages were communicated by an ad,] respondents supply extensive information about their reactions to copy, but the scores are only relevant to the rational decision-making processes supplied by the brain's interpreter, not to the actual decision processes that drive target audience behavior.").
294. See, e.g., ZALTMAN, supra note 14, at 171 ("In one study, researchers discovered that consumers described their most recent experience at a bar differently depending on the reason they were given for being interviewed. The different reasons for asking them to share this experience constituted different goals as well as different stimuli.").
295. The problem may be more acute for dilution surveys than for confusion surveys because dilution surveys are more likely to ask about emotions and purchase intentions rather than about factual beliefs as to the association between two products or services. Cf. VICKI G. Morwitz & Gavan J. Fitzsimons, The Mere-Measurement Effect: Why Does Measuring Intentions Change Actual Behavior?, 14 J. CONSUMER PSYCHOL. 64, 64 (2004) (arguing that questions about intentions do not reveal preexisting intentions but instead often lead consumers to construct intentions that did not previously exist, affecting their subsequent attitudes and behaviors).
296. 15 U.S.C.A. § 1125(c)(1) (West Supp. 2007). The revised law apparently governs only a defendant's use of a trademark as a mark for its own goods or services. But even if it reaches more broadly, many uses of a mark - in casual conversation, in newspaper stories, and so on - will not be covered. For more on the use-of-a-mark versus use-as-a-mark debate, see Beebe, supra note 40, at 1144-45 and Graeme B. Dinwoodie & Mark D. Janis, Dilution's (Still) Uncertain Future, 105 MICH. L. REV. FIRST IMPRESSIONS 98, 100-02 (2006), http://www.michiganlawreview.org/ firstimpressions/vol 105/dinwoodie.pdf.
297. Laura A. Heymann, Metabranding and Intermediation: A Response to Professor Fleischer, 12 HARV. NEGOT. L. REV. 201, 218-19 (2007). In other words, dilution becomes a version of tortious interference with expected contractual relations, without the many limitations on that disfavored tort. See RESTATEMENT (SECOND) OF TORTS § 766C (1979) (providing no liability for negligent interference with contractual relations);
298. id. § 767 (listing factors determining whether intentional interference with contractual relations is improper);
299. id. § 768 (setting forth legitimate acts of intentional interference with contractual relations to promote competition).
300. See Stacey L. Dogan & Mark A. Lemley, The Trademark Use Requirement in Dilution Cases, SANTA CLARA COMPUTER & HIGH TECH. L.J. (forthcoming), available at http://www.scu.edu/law/tmdilution/File/ Lemley_Dogan_The_Trademark_Use_Requirement_in_Dilution_Cases_draft.pdf (discussing the new "use as a mark" requirements in federal dilution law).
301. Kenneth Chang, Enlisting Science's Lessons to Entice More Shoppers to Spend More, N.Y. TIMES, Sept. 19, 2006, at F3.
302. As Kenneth Chang reported: In commercials that did spur brain activity, reactions appeared to be in conflict, Dr. Freedman [a clinical professor of psychiatry at U.C.L.A.] said. "Almost always, if you activated one part of the brain," he said, "you activated many competing parts of the brain." For example, an appealing car commercial might activate not only .. . the parts of the brain that shout, "Wow, I want that car now!" but also the amygdala, the part of the brain associated with fear and anxiety, perhaps warning, "That would be a stupid impulsive thing to do." Id.
303. One might argue that trademark owners can control side-by-side exposures through contract. But in most cases, they lack the ability to do so. A McDonald's might discover that the Gap next door lost its lease and is now a Hooters. Eric Goldman has written about the pervasive constraints faced by most manufacturers, giving retailers substantial control over how a particular brand will be categorized and displayed to consumers. See Eric Goldman, Brand Spillovers (Aug. 3, 2006) (unpublished manuscript), available at http://www.law.berkeley.edu/institutes/bclt/ipsc/papers2/goldman.pdf.
304. See Antonia Kronlund & Daniel M. Bernstein, Unscrambling Words Increases Brand Name Recognition and Preference, 20 APPLIED COGNITIVE PSYCHOL. 681, 684 (2006) ("These results introduce the possibility that the actual brand of water [a thirsty shopper looks at] matters less than the decision-making processes that came immediately before seeing the bottled water. In a shopping context, this may involve processing of other brands (e.g. of a candy bar), although it may also involve the processing of ordinary words (e.g. on a store display or magazine cover).").
305. See Irwin P. Levin & Aron M. Levin, Modeling the Role of Brand Alliances in the Assimilation of Product Evaluations, 9 J. CONSUMER PSYCHOL. 43, 47-49 (2000) (finding that mere physical proximity of restaurants led to attitude transfer between them among research subjects, though less than when the restaurants were explicitly cobranded). But see supra notes 176-77 and accompanying text (noting that absent confusion or good reason, consumers resist punishing strong brands for negative associations).
306. See Elizabeth Holmes, On MySpace, Millions of Users Make "Friends" with Ads, WALL ST. J., Aug. 7, 2006, at B1 (discussing MySpace pages created by marketers for movie characters, mascots, and products).
307. See, e.g., id. (reporting that a MySpace patron used the profile picture of "Ricky Bobby" as his own picture in an effort to promote his disc-jockeying business).
308. See Kyoungmi Lee & Sharon Shavitt, The Use of Cues Depends on Goals: Store Reputation Affects Product Judgments when Social Identity Goals Are Salient, 16 J. CONSUMER PSYCHOL. 260, 268 (2006) (finding that when people are thinking about their self-concepts, store reputation affects evaluation of the brands the store carries, and this effect is spontaneously self-generated for items tied to self-concept, such as watches or clothing);
309. cf. Heymann, supra note 187, at 220-21 (discussing how intermediaries, such as reporters, can distort brand messages).
310. See Frank R. Kardes et al., Construal-Level Effects on Preference Stability, Preference-Behavior Correspondence, and the Suppression of Competing Brands, 16 J. CONSUMER PSYCHOL. 135, 137 (2006) (finding that the presence of a brand makes it more salient, inhibiting the activation of mental images of other brands);
311. id. at 140-42 (finding that cuing with candy bars-Lindt, Ghiradelli, and Cadbury-inhibited recognition of Snickers, Butterfinger, Three Musketeers, etc. as candy bars);
312. Krishnan & Chakravarti, supra note 155, at 13 (finding that competitive ads interfere with recall and recognition);
313. Noel, supra note 154, at 306-07 (finding that competing ads for products of the same type decrease memory for any one brand). General explanations of the harm of dilution - the junior use can decrease awareness of the senior brand, can make the senior brand's associations less favorable, and can make the senior brand's associations shared rather than unique - make quite clear that the source of harm is often competition or some other change in the marketplace, rather than a trademark-specific phenomenon. See Steckel et al., supra note 157, at 625 ("Suppose that a competitor to VOLVO introduced and heavily promoted a new model called 'Super Safe' and succeeded in displacing Volvo as the perceived safety leader.... [T]he brand and the power of the VOLVO trademark would be damaged, but not because of the use of the same or similar name or logo. One could possibly say that the trademark has been metaphorically diluted, but there is no trademark dilution in a legal sense.");
314. Swann, Dilution Redefined, supra note 9, at 620 ("A form of dilution does occur, of course, when PEPSI, for example, brings COKE to mind. To those to whom COKE means cola (and cola means COKE), the introduction of PEPSI causes a measure of product category dilution - COKE no longer is the sole cola schema in the consumer's mind... . Only association that is substantially brand triggered counts in a dilution calculus .. . ." (citation omitted)).
315. Kortney Stringer, Brand-Named Babies: Parents Seek to Be Different - Or Just Make Money, DETROIT FREE PRESS, June 12, 2006, § Business, at 1E. In 2000, names given to five or more children in the United States included Armani, Aviance, Breck, Camry, Canon, Carrier, Catera, Celica, Chanel, Chevy, Coty, Dannon, Darvon, Delmonte, Dior, Disney, Dodge, Evian, Guinness, Halston, Hyatt, Ikea, Infiniti, Jantzen, Jetta, Josten, Lexus, Loreal, Ronrico, Ruger, Saran, Skyy, and Timberland. See Cleveland Kent Evans, Brand Names as Baby Names (unpublished manuscript, on file with the Texas Law Review). A few children have been named Espn, for the sports network. See Stringer, supra. Parents have also auctioned off both temporary and permanent naming rights for their children; in the lead is Golden-Palace.com, with at least three children. See id.
316. YOCHAI BENKLER, THE WEALTH OF NETWORKS 286 tb1.8.1 (2006);
317. see also Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 903-04 (9th Cir. 2002) ("MCA's use of the [Barbie] mark [for the song title Barbie Girl] is dilutive. . .. [A]fter the song's popular success, some consumers hearing Barbie's name will think of both the doll and the song, or perhaps of the song only. This is a classic blurring injury . .. ." (footnote omitted));
318. Simonson, supra note 87, at 26 (explaining that parodies are a type of dilution "in which the new brand name or its product category creates an additional association between the original brand and some unwanted perception").
319. BENKLER, supra note 199, at 287;
320. see also Julie Bosman, Agencies Are Watching as Ads Go Online, N.Y. TIMES, Aug. 15, 2006, at C6 (discussing spoof ads that attack products or offer inconsistent meanings for the brand and quoting a creative director who describes such spoofs as "brand terrorism," while acknowledging that companies can do little to control them); Micro Persuasion, Study: Wikipedia Dominates Brand Search Results, http://www.micropersuasion.com/2006/09/study_wikipedia.html (Sept. 11, 2006, 14:23) (observing that Wikipedia entries on brands often appear in the first ten search results on Google and that the entries often contain negative information, and noting that unique trademarks are likely to have highly ranked Wikipedia entries).
321. See, e.g., Kathryn Bold, Fashion Flares: Back-to-School Shopping Comes with Warning Signals, L.A. TIMES, Aug. 18, 1994, at E1 (discussing how sports-team logos have been appropriated by gangs); Clare Coulson, You've Been WAGGED!, TELEGRAPH, Aug. 9, 2006, http://www.telegraph.co.uk/fashion/main.jhtml?xml=/fashion/2006/08/09/efwag09. xml&sSheet=/fashion/2006/08/09/ixfashion.html (discussing how designers are "fighting to protect their brands from being endorsed by the 'wrong' sort of celebrity"). Some brands have struggled with an "urban" - that is, African-American - image, which reworks the meaning of the brand. Timberland, for example, initially resisted the brand's appropriation by young African-Americans because the company feared that would drive away other purchasers. See Dan Glaister, A Kick Up the Nineties, GUARDIAN, Apr. 28, 1994, at 15 (discussing controversial comments about urban consumers by Timberland's chief operating officer);
322. see also Douglas Century, Jay-Z Puts a Cap on Cristal, N.Y. TIMES, July 2, 2006, § 9, at 1 (discussing the rapper's response to comments by Cristal's president suggesting that an association with rap could hurt the brand). But the law creates no recourse.
323. See, e.g., Cathleen McGuigan, The McMansion Next Door, NEWSWEEK, Oct. 27, 1993, at 85 (describing McMansions as architecturally undistinguished, mass produced, and relatively inexpensive);
324. see also supra note 167 and accompanying text.
325. See Quality Inns Int'l, Inc. v. McDonald's Corp., 695 F. Supp. 198, 221-22 (D. Md. 1988).
326. See Shuy, supra note 107, at 4-5 (discussing the Quality Inns case). Consider also the common phrase "a few fries short of a Happy Meal."
327. See ALEX WIPPERFURTH, BRAND HIJACK: MARKETING WITHOUT MARKETING 132 (2005) ("Studies show that social groups influence 80 percent of all purchases.");
328. Austin, supra note 9, at 902 ("Some research into the sources of consumer desires suggests that among the most powerful stimulators of desire to purchase goods are the goods friends and family have already purchased.");
329. Terry L. Childers & Akshay R. Rao, The Influence of Familial and Peer-Based Reference Groups on Consumer Decisions, 19 J. CONSUMER RES. 198, 206-08 (1992) (finding significant influence on brand choice);
330. Jennifer Edson Escalas & James R. Bettman, You Are What They Eat: The Influence of Reference Groups on Consumers' Connections to Brands, 13 J. CONSUMER PSYCHOL. 339, 339 (2003) (finding that consumers value brands based on the brands' perceived relationships to groups to which consumers belong or to which they aspire).
331. See Rajdeep Grewal et al., Early-Entrant Advantage, Word-of-Mouth Communication, Brand Similarity, and the Consumer Decision-Making Process, 13 J. CONSUMER PSYCHOL. 187, 188 (2003) ("[Word of mouth] significantly influences product evaluations and purchase decisions. In fact, [it] has been shown to be more powerful than printed information primarily because [word of mouth] information is considered to be more credible." (citations omitted));
332. Russell N. Laczniak et al., Consumers' Responses to Negative Word-of-Mouth Communication: An Attribution Theory Perspective, 11 J. CONSUMER PSYCHOL. 57, 57-58 (2001) (reviewing the research consensus on the powerful influence of word of mouth, including research showing that negative word of mouth is more harmful than positive word of mouth is helpful);
333. Robert E. Smith & Christine A. Vogt, The Effects of Integrating Advertising and Negative Word-of-Mouth Communications on Message Processing and Response, 4 J. CONSUMER PSYCHOL. 133, 145-46 (1995) (finding that ads increase the credibility of negative word of mouth by triggering skepticism).
334. See, e.g., JENKINS, supra note 160, at 80 (discussing group tastemaking in online communities);
335. Eric Goldman, Online Word of Mouth and Its Implications for Trademark Law, in TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH (Graeme B. Dinwoodie & Mark D. Janis eds., forthcoming 2008) (stating that reviews and word of mouth affect consumer perceptions and that these effects are vastly multiplied on the Internet);
336. Chris Gaither, Where Everyone Is a Critic, L.A. TIMES, Aug. 25, 2006, at Al (discussing a consumer review Web site with a powerful effect on businesses);
337. Bob Tedeschi, Help for the Merchant in Navigating a Sea of Shopper Opinions, N.Y. TIMES, Sept. 4, 2006, at C5 ("Scores of Internet merchants have recently begun following Amazon's lead by posting customer reviews - both flattering and flaming - of products they sell.... '[C]onsumers will trust the voice of another customer before they trust the retailer or manufacturer.'" (quoting a Petco executive)).
338. See, e.g., ZALTMAN, supra note 14, at 190 (discussing a study of the effects of movie reviews);
339. see also id. at 12-13, 166-67, 180-81 (describing how exposure to others' evaluations changes consumers' memories of their own experiences with products or services). The malleability of memory extends beyond advertising-induced change. See supra note 25 and accompanying text.
340. See, e.g., Thomas McArdle, ABC's Food Lyin', NAT'L REV., Feb. 10, 1997, at 42, 42 (noting that after the television report on unsanitary practices at Food Lion, the company's stock "crumbled, and earnings reached twenty-year lows").
341. See Sheff, supra note 9, at 360 ("[D]rinking a cold beverage on a hot day, getting a product recall notice, seeing an aesthetically pleasing advertisement, or reading a news report that a household product contains a potent carcinogen are all experiences that would modify the affect pool for the products and trademarks involved and would accordingly make a consumer more or less likely to choose products bearing the implicated trademarks." (footnote omitted)).
342. See, e.g., Charlotte J. Romano, Comparative Advertising in the United States and in France, 25 NW. J. INT'L L. & Bus. 371, 377-80 (2005).
343. 15 U.S.C.A. § 1125(c)(3)(A)(i) (West Supp. 2007).
344. See, e.g., N.Y. State Soc'y of Certified Pub. Accountants v. Eric Louis Assocs., Inc., 79 F. Supp. 2d 331, 342 (S.D.N.Y. 1999) (holding that the defendant's use of another organization's trademark created initial interest confusion and also violated the trademark dilution provisions of the FTDA).
345. 439 F. Supp. 2d 281 (S.D.N.Y. 2006).
346. Id. at 285.
347. Id.
348. Id. at 288.
349. See id. at 295 (distinguishing harmful customer diversion from legitimate substantive criticism for purposes of assessing irreparable harm).
350. Sheff s discussion of why truthful uses of another's mark should be prohibited, for example, purports to accept comparative advertising but in fact gives reasons why comparative advertising should be banned. See Sheff, supra note 9, at 385 ("Allowing second comers to use existing marks where such uses provide accurate information about the second comer's product would obviously invite abuse and gamesmanship, and distinguishing between helpful and misleading uses would be a costly endeavor.").
351. Doctrines counseling caution in suppressing referential uses like parody can prove precarious; not all courts are particularly solicitous of parodists, who can seem like they're just mocking for the sake of mockery, or even of comparative advertisers, who often seem to be free riding on major brands' investments. See, e.g., People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359, 367 (4th Cir. 2001) (finding that the "People Eating Tasty Animals" parody Web site infringed plaintiff's trademark);
352. Anheuser-Busch, Inc. v. Balducci Publ'ns, 28 F.3d 769, 777 (8th Cir. 1994) (finding "Michelob Oily" parody to be infringing);
353. McNeil-PPC, Inc. v. Guardian Drug Co., 984 F. Supp. 1066, 1074 (E.D. Mich. 1997) (finding that the defendant's similar trade dress with a "compare to" message on generic products infringed plaintiff's trade dress for a lactose-intolerance aid).
354. See 15 U.S.C.A. § 1125(c)(3)(A) (West Supp. 2007) (excluding from dilution liability the fair use of a trademark in connection with comparative advertising, criticism, or parody, other than as a designation of source for that person's own goods or services).
355. See Complaint for Declaratory Relief, Smith v. Wal-Mart Stores, Inc., 475 F. Supp. 2d 1318 (N.D. Ga. 2007) (No. l:06-cv-526-TCB), 2006 WL 849988, available at http://www.citizen.org/documents/ Complaint_and_exhibit.pdf (seeking a declaratory judgment that the products do not violate trademark laws and that the First Amendment forbids application of such laws to the products); Press Release, Public Citizen, Wal-Mart Critic Has First Amendment Right to Sell 'Walocaust' Items, Maintain Web Site Critical of Retail Giant, Public Citizen Tells Court (Mar. 7, 2006), available at http://www.citizen.org/pressroom/release.cfm?ID=2148 (reviewing the suit against Wal-Mart and related background facts).
356. See, e.g., Mary LaFrance, No Reason to Live: Dilution Laws as Unconstitutional Restrictions on Commercial Speech, 58 S.C. L. REV. 709 (2007) (suggesting that any harm caused by dilution does not affect the public interest and that dilution laws violate the First Amendment by constraining commercial speech without promoting a substantial government interest).
357. See Dogan & Lemley, Right of Publicity, supra note 54, at 1218 n.269 ("One benefit of understanding dilution law as we have explained it elsewhere - as directed at reducing consumer search costs - is that our approach may reduce the tension between dilution law and the First Amendment." (citing Stacey L. Dogan & Mark A. Lemley, The Merchandising Right: Fragile Theory or Fait Accompli?, 54 EMORY L.J. 461 (2005)));
358. see also Brian A. Jacobs, Note, Trademark Dilution on the Constitutional Edge, 104 COLUM. L. REV. 161, 202 (2004) (arguing that treating dilution as based on search costs and efficiency considerations satisfies the substantial interest and tailoring requirements of the commercial-speech doctrine). First Amendment criticisms of dilution law abound, though none of them have yet addressed the search-costs argument. E.g., Ann Bartow, Likelihood of Confusion, 41 SAN DIEGO L. REV. 721, 796-817 (2004);
359. Denicola, supra note 163;
360. Pratheepan Gulasekaram, Policing the Border Between Trademarks and Free Speech: Protecting Unauthorized Trademark Use in Expressive Works, 80 WASH. L. REV. 887 (2005);
361. Robert N. Kravitz, Trademarks, Speech, and the Gay Olympics Case, 69 B.U. L. REV. 131 (1989).
362. LaFrance disagrees that dilution could serve a substantial government interest. See LaFrance, supra note 223, at 716 ("[T]he supposed harms that dilution laws prevent or remedy are either nonexistent, insubstantial, or relevant only to the ability of businesses to derive profits from consumers without bestowing any commensurate public benefits such as lower prices, better products, greater product choices, or better information to assist consumers in making their choices.");
363. id. at 719 ("[A]ny harm to the value of the trademarks affected by dilutive speech interferes only with the ability of the trademark owners to psychologically manipulate consumers. Preserving the ability of trademark owners to influence consumers in this way does not amount to a substantial governmental interest."). I think LaFrance is overly optimistic about the constraints the "substantial interest" prong of the commercial-speech test imposes on government. Almost anything can be a "substantial interest." See, e.g., Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 475 (1989) (holding that "promoting an educational rather than commercial atmosphere on SUNY's campuses, promoting safety and security, preventing commercial exploitation of students, and preserving residential tranquility" were all substantial government interests for commercial-speech purposes);
364. Ward v. Rock Against Racism, 491 U.S. 781, 796-97 (1989) (holding that controlling noise levels in a public park was a substantial government interest). In the post-New Deal era, the fact that a regulation benefits only one set of private interests is no barrier to upholding it. The only time that an asserted interest is not "substantial" is when the loopholes contained in the challenged regulation make it clear that the government doesn't really want to promote that interest; as a result, this prong of the test is in practice hostage to whether the regulation has a reasonable fit to the interest. See, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364, 385 n.16 (1984) (noting that significant underinclusiveness made a regulation "unrelated" to the asserted purpose, suggesting that the government's interest was not substantial);
365. Buckley v. Valeo, 424 U.S. 1, 45 (1976) (finding no "substantial societal interest" was furthered by a regulation with enormous loopholes).
366. 507 U.S. 410(1993).
367. Id. at 428.
368. Id. at 412.
369. Id. at 415.
370. Id. at 417-18.
371. Id.;
372. see also Cafe Erotica of Fla., Inc. v. St. Johns County, 360 F.3d 1274, 1291 (11th Cir. 2004) (holding that safety and aesthetics were "not truly furthered" by an ordinance that restricted the size of political signs while allowing commercial signs to be much larger).
373. Eugene Volokh has drawn on Discovery Network to argue that the FTDA's exclusion of noncommercial speech is content based, but to my knowledge no one has yet made this direct analogy. See Eugene Volokh, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 HOUS. L. REV. 697, 707-08 (2003).
374. See Kathleen M. Sullivan, Cheap Spirits, Cigarettes, and Free Speech: The Implications of 44 Liquormart, 1996 SUP. CT. REV. 123, 157 ("[M]ost of what Madison Avenue sells is product image. Even under the existing notion that the government has broad leeway to control misleading commercial speech, it is not generally claimed that such imagistic associations are deceptive.").
375. As J. Thomas McCarthy has noted: [T]he theory of dilution by blurring assumes that if one small user can blur the sharp focus of the famous mark to uniquely signify one source, then another and another small user can and will do so. Like being stung by a hundred bees, significant injury is caused by the cumulative effect, not by just one. . .. Many of us have been stung by one bee and no more stings immediately followed. . . . Why should courts assume without proof that multiple uses will follow if this one, relatively insignificant, use is allowed to continue? McCarthy, supra note 54, at 735 (footnotes omitted);
376. see also supra notes 198-200 and accompanying text.
377. 507 U.S. at 418-19;
378. see also Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 190 (1999) (holding that a regulation of truthful commercial speech pervaded with exemptions and inconsistencies fails the requirement that the regulation directly advance a substantial government interest);
379. id. at 193-94 ("Even under the degree of scrutiny that we have applied in commercial speech cases, decisions that select among speakers conveying virtually identical messages are in serious tension with the principles undergirding the First Amendment.").
380. An underlying assumption of current First Amendment doctrine is that truthful commercial speech has inherent value that puts the burden on those who would suppress it. If people enjoy buying Buick aspirin, that is reason enough to let them do so because the First Amendment considers their preferences at least as valid as the preferences of those who would like to have only one meaning for Buick.
381. See Edenfield v. Fane, 507 U.S. 761, 770-71 (1993) ("[A] governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.");
382. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 564 (1980) ("[T]he regulation may not be sustained if it provides only ineffective or remote support for the government's purpose.").
383. I thank Graeme Austin for pressing me on this point.
384. See generally Robert G. Bone, A Skeptical View of the Trademark Dilution Revision Act, 11 INTELL. PROP. L. BULL. 187, 194 (2007) ("[I]t is hard to imagine a case of free riding in which the defendant has no legitimate reason to use the mark. It is always possible to argue that use of the mark avoids duplicative investment in creating the same public associations and also benefits consumers by offering a new product with those meanings and associations attached.");
385. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 TEXAS L. REV. 1031 (2005) (defending much free riding). Well-accepted examples of free riding on trademarks include comparative advertising, news reports on popular products and celebrities (and the ads surrounding those reports), artistic appropriations, such as Andy Warhol's Campbell's Soup and Brillo lithographs, and the placement of store brands next to major national brands to catch a budget-minded shopper's eye.
386. TOM WOLFE, THE ELECTRIC KOOL-AID ACID TEST (Black Swan 1989) (1968).
387. AQUA, Barbie Girl, on AQUARIUM (MCA Records 1997).
388. Sheff argues that courts could adopt the cognitive model yet apply normative principles to "wall off whole areas of human behavior from the reach of trademark liability, from utilitarian spheres such as news reporting and keyword indexing to expressive spheres such as commentary, criticism, parody, and appropriationist art." Sheff, supra note 9, at 384. Yet dilution's proponents have not made the argument for going halfway. Even if allowing a single producer to control a mark's meaning is more efficient than uncontrolled use, there is still no reason to think that an intermediate regime, in which one producer plus a set of "free speech" users can affect meaning, is preferable to a system without dilution protection, especially given the costs associated with creating and enforcing legal rights.
389. See, e.g., McCarthy, supra note 54, at 747 ("[T]oo many courts have viewed antidilution law as a quick and easy remedy to be applied whenever dilution theory says that injury to a famous mark might occur [without requiring evidence of actual harm].").
390. See, e.g., Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 41 (2d Cir. 1994) (finding that an ad portraying John Deere's trademark buck as a small, cowardly creature likely violated New York's antidilution law).
391. See Klerman, supra note 54, at 1767 (stating that social benefit from favorable associations can outweigh social harm from increased searching costs).
392. See, e.g., Swann, Dilution Redefined, supra note 9, at 595 (arguing that brands are among a company's most valuable assets and, properly managed, retain their value despite huge shifts in the competitive environment);
393. id. at 603-04 (contending that allowing trademark owners to control meaning will help consumers).
394. Dennis S. Karjala, Congestion Externalities and Extended Copyright Protection, 94 GEO. L.J. 1065, 1071-74 (2006). But cf. id. at 1074-75, 1075 & n.19 (distinguishing trademark dilution by accepting, though somewhat skeptically, that dilution causes consumer harm).
395. Sheff s analysis of dilution makes this clear, as he repeatedly indicates that the harm with which he is concerned is that consumers will make decisions they "would not otherwise make" because of free-riding uses. Sheff, supra note 9, at 376, 380. Different decisions are in themselves neither good nor bad; they are simply different. One could argue that dilution is harmful in the following way: Dilution changes consumers' emotional relations to a brand, making other competing brands relatively more appealing. And diluters will target famous brands because they will benefit most from free riding on famous brands. Thus, assuming there is a correlation between fame and quality, a dilution-caused shift towards less famous brands will harm consumers. But this is a fairly attenuated causal chain, and as discussed in the text, the malleability of quality judgments suggests that dilution will make up on the swings what it loses in the roundabouts.
396. See Klerman, supra note 54, at 1770 (arguing that qualities of close competitors are likely to be highly similar). Klerman does not specify whether he thinks the similarities will be perceptual or in some sense "objective," as we might deem the percentage of cocoa in chocolate to be. Given that perceived quality is what changes with dilution, it should be easy for consumers to transfer their good feelings from one brand to another if dilution really occurs.
397. See generally Hoch, supra note 176, at 451-52 (arguing that preferences are to a great extent self-constructed, making product experiences more attractive ex post than ex ante).
398. See id. at 449, 451-52 (stating that consumers change their tastes so that they are happy with what they are consuming). Given that most brands on the market have the objective qualities required to satisfy consumers, the emotional benefits of branding can attach to any of them. See id. at 450 ("Quality parity is the norm in many categories. Products in frequently purchased categories have similar features and offer comparable levels of overall quality levels even when they are distinguished by superficial attributes .... [T]he inherent ambiguity in many product experiences can support interpretations that serve the consumer's best interests, whether that be a consistency with prior knowledge (confirmation) or prior choices (status quo)." (citation omitted)).
399. Swann, Interdisciplinary Approach, supra note 9, at 952.
400. See Richard Woods, Exploring the Emotional Territory for Brands, 3 J. CONSUMER BEHAV. 388, 388 (2004) ("If only because of the relatively small number of primary emotions, however, brands in the same sort of categories tend to stand for the same sort of emotions . . . .").
401. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring).
402. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) ("It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market....").
403. Dilution cases are brought by private parties. But so are libel cases, and their systematic effects on speech still justify First Amendment scrutiny. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265 (1964).
404. See, e.g., S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 539 (1987) (upholding a statutory provision allowing the United States Olympic Committee to prohibit the commercial use of the word Olympic without proving that such use was likely to be confusing);
405. Mut. of Omaha Ins. Co. v. Novak, 836 F.2d 397, 398 (8th Cir. 1987) (affirming the district court's finding of infringement based on the likelihood of confusion between Mutual of Omaha's registered trademark "Indian head" logo and Novak's "Mutant of Omaha" design, which depicted a "feather-bonneted, emaciated human head");
406. Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206-07 (2d Cir. 1979) (upholding a preliminary injunction prohibiting the distribution of the film Debbie Does Dallas).
407. See Sheff, supra note 9, at 375 ("[S]trict adherence to a behavioralist model of trademark liability has the potential to greatly broaden the scope of such liability . . . .").
408. Pullig et al., supra note 65, at 63.
409. See id. at 63. There are only a few marks registered under the name Gap that are not owned by Gap Inc., though a large number of other marks incorporate the word Gap as part of a longer name. See U.S. Patent & Trademark Office, Trademark Electronic Search System (TESS), http://tess2.uspto.gov/bin/gate.exe?f=tess&state=1hshsb.1.1 (providing a searchable database of U.S. trademarks and listing 360 live registered marks that include the word Gap when it was searched on May 18, 2006). The dilutive brand Pullig et al. tested, Gap stain-resistant sheets, falls within Gap Inc.'s registration number 2341527, which includes bed sheets. See id. Because Gap competes in this category, a trademark infringement claim against Gap stain-resistant sheets would almost certainly succeed.
410. Big Red gum showed significant effects from dilution by Big Red snack bars. See Pullig et al., supra note 65, at 57-58. Yet the name consists of two highly descriptive terms, which limits its protectability. In a search of the electronic trademark-registration records on November 10, 2006, I found numerous live registered Big Red marks for products including industrial cleaners, soft drinks, pet food, lottery services, equipment switches, work benches, chicken sandwiches, wine, chewing tobacco, and thermometers. There are also a number of marks incorporating Big Red, such as Clifford the Big Red Dog marks for numerous goods, including cakes and lip balm. Cornell and the University of Wisconsin also use Big Red as a nickname. The large number of other users is not surprising, since many people can have good reasons to use the descriptive term Big Red. Big Red soda and wine and Clifford the Big Red Dog food products are highly similar to the hypothetical products Pullig et al. tested, meaning the Big Red mark is prediluted and subject to competing associations with other product attributes. See 15 U.S.C.A. § 1125(c)(2)(B)(iii) (West Supp. 2007) (directing courts in dilution cases to consider "[t]he extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark"). Big Red soda is particularly popular in Texas and is said to taste like bubble gum. See Joe Nick Patoski, Big Red, TEXAS MONTHLY, Aug. 1986, at 120, 120-21, available at http://www.texasmonthly.com/ranch/readme/bigred.php (noting that "[t]he only beverage that consistently outsells Big Red in San Antonio is Coca-Cola," and describing the taste as "something like liquid bubble gum"); Big Red Soda - The BevNET.com Review, http://www.bevnet.com/reviews/bigred ("If we ever had a beverage that tastes just like bubble gum, this is it."). As for Trix, there are only five other live registered Trix marks in the database (tick removal, office furniture, model trains, leather desk accessories, and rubber hoses), but a significant number of other marks incorporate Trix, from Snak Trix (fishing lures) to Glowtrix (styling aid) to Pix & Trix (toys). An additional use that evoked the meaning of tricks would have a strong claim to be nondiluting. See Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 221 (2d Cir. 1999) ("It is a generally accepted principle of the trademark law, furthermore, that a senior claim to a mark does not bar a junior from using the same words (or symbols) comprising the mark in their descriptive sense.").
411. See Morrin et al., supra note 87, at 251 (listing the eight brands as "Parker pens, Ace hardware stores, Kiwi shoe polish, Bass ale, Gibson greeting cards, Viking computer components, Mercury automobiles, and Pioneer audio equipment").
412. See id. at 252 tbl.2 (listing the percentage of members of the "undiluted" control group who could recall the first user as 49.1% for Parker, 13.2% for Gibson, and 45.3% for Viking).
413. See id. (listing the percentage of members of the "undiluted" group who could recall the first user as 90.6% for Ace, 60.4% for Kiwi, 77.4% for Bass, 98.1% for Mercury, and 85.8% for Pioneer).
414. Id. at 251. Morrin et al. tested Parker pens as the first user, id., though Parker Brothers games (the dilutive use) appear to have beaten the pens to the market by a year; Parker Brothers' first use of its mark in commerce was 1888, see The Story of Parker Brothers, http://www.hasbro.com/default.cfm?page=ci_history_pb, whereas Parker pens entered the market in 1889, see The History of Parker Pens, http://www.parkerpen.com/en/discovery/making_of/timeline. The bigger question, of course, is what harm this century plus of coexistence has done to either, regardless of who was first. The other dilutive marks in Morrin et al.'s study have also been around for decades.
415. See Morrin et al., supra note 87, at 253 (arguing that because familiarity provides resistance to dilution, a high-fame requirement means that few of the brands entitled to federal dilution protection will ever suffer harm from dilution, and thus fame should be interpreted generously).
416. See Swann, Interdisciplinary Approach, supra note 9, at 967-68. Unsurprisingly, Swann cites Morrin & Jacoby, supra note 49, for the proposition that a competitor's use of Tiffany's blue color could dilute Tiffany's brand value. Swann, Interdisciplinary Approach, supra note 9, at 968 n.163. All else aside, this is a misapplication of their research, which deals with products in noncompeting, distinct categories; other dilution researchers have noted that imitation of similar products can reinforce rather than dilute. See, e.g., Pullig et al., supra note 65, at 62.
417. See Swann, Interdisciplinary Approach, supra note 9, at 970 ("Elevating free riding to a stand-alone vice may thus give modern strong brands the protection that they may not receive under current concepts.").
418. See id. at 970-71.
419. See id. at 976 ("For the present needs of strong marks, it is likely that precedent already exists to prevent trading on their elaborate networks .... To the extent that precedent is deemed not to exist, the common law flexibility of unfair competition must be revived with an infusion from modern marketing and cognitive psychology . . . ."). As Graeme Dinwoodie and Mark Janis have pointed out, the fame requirement has little connection to the search-costs rationale for dilution. Dinwoodie & Janis, supra note 186, at 100. It is thus reasonable for dilution's proponents to seek to relax the fame requirement.
420. See Swann, Interdisciplinary Approach, supra note 9, at 972 ("Just as trademarks have evolved, we have moved legally from source as king to the salience of quality; we should now move to brand imagery as an object of trademark concern.").
421. See McKenna, supra note 32.
422. Id. at 1841.
423. Id. at 1910-11.
424. See generally Bartow, supra note 224 (discussing persistent judicial concepts of consumers as vulnerable to confusion of all kinds).
425. See Rebecca Tushnet, Why the Customer Isn 't Always Right: Producer-Based Limits on Rights Accretion in Trademark, 116 YALE L.J. POCKET PART 352 (2007), http://yalelawjournal.org/2007/ 04/25/tushnet.html (discussing doctrines that limit the rights of trademark owners in order to protect the free use of terms helpful to other producers).
426. See Dogan & Lemley, supra note 188 (discussing the new "use as a mark" requirements in federal dilution law);
427. cf. Sheff, supra note 9, at 384 (recognizing the expansiveness of the associationist model and suggesting trademark use as a normative limit). For a critique of trademark use as a bright-line limit on the scope of trademark law, see Graeme B. Dinwoodie & Mark D. Janis, Confusion over Use: Contextualism in Trademark Law, 92 IOWA L. REV. 1597 (2007).
428. See Kronlund & Bernstein, supra note 192, at 684 (discussing the results of a study on the effects of sequential exposure to brands);
429. Levin & Levin, supra note 193, at 47-49 (discussing the effects of physical proximity on restaurant evaluations).
430. Swann, Dilution Redefined, supra note 9, at 608.
431. See, e.g., Stacey L. Dogan & Mark A. Lemley, Grounding Trademark Law Through Trademark Use, 92 IOWA L. REV. 1669, 1692-93 (2007) (using this analogy). Eric Goldman has investigated the numerous ways in which retailers and others can "use" trademarks to create value for themselves, including placement within stores as well as placement of the stores themselves to draw value from nearby stores. See Goldman, supra note 191. Kardes et al. also found that the physical presence of one brand could suppress recognition of other brands and suggested that this effect could be manipulated by prominent placement in stores. Kardes et al., supra note 197, at 143.
432. See I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 45-46 (1st Cir. 1998).
433. See id. at 45-50 (applying stringent standards for fame and dilution and reversing the district court's grant of a temporary injunction on a dilution claim);
434. cf. Farley, supra note 38, at 111-12 (arguing that dilution is unreal and unprovable and that dilution law is really about preventing unfair free riding, although a sufficient definition of what is unfair is lacking).
435. See generally MARC ALLEN EISNER, ANTITRUST AND THE TRIUMPH OF ECONOMICS 228-31 (1991) (discussing the ascendance of economics in antitrust policy and judicial decision making);
436. John E. Kwoka, Jr. & Lawrence J. White, Introduction to THE ANTITRUST REVOLUTION: ECONOMICS, COMPETITION, AND POLICY 1, 1, 1-5 (John E. Kwoka, Jr. & Lawrence J. White eds., 3d ed. 1999) (describing the "economic revolution in antitrust" and the emergent role of economics in court decisions interpreting antitrust law and policy).
437. See EISNER, supra note 283, at 228-29 (discussing how courts and agencies gave substantive content to the vague economic and policy goals of the Sherman Act);
438. Kwoka & White, supra note 283, at 1 ("Throughout, [antitrust] diligently pursued what it perceived to be predatory conduct by large companies against smaller rivals and new entrants.").
439. See Kwoka & White, supra note 283, at 2 ("Efficiency, [the Chicago School] has maintained, is what the plain language of the law implies and in any event is the only objective that can sensibly be pursued.");
440. see also EISNER, supra note 283, at 229, 229-31 ("Economics could contribute an organizing paradigm for judicial decision making [in antitrust cases]. ... It could furnish simple decision rules for selecting cases and suggest which data were most appropriate to reveal the effects of a given restraint."). In many cases, conceiving of antitrust law in rigorous economic terms had the effect of limiting the available causes of action. Courts and agency officials have taken a more permissive view of megamergers, price-fixing schemes, and especially vertical integration after economics began reshaping the doctrine.
441. See Kwoka & White, supra note 283, at 2-3.
442. Cf. Kevin Emerson Collins, Cybertrespass and Trespass to Documents, 54 CLEV. ST. L. REV. 41, 47-48 (2006) (discussing the ways in which conceiving of electronic signals as newly detectable small particles, analogous to previously unmeasurable environmental pollution, enabled courts to create expansive doctrines of trespass to chattels in cyberspace that pose substantially different risks to free expression and competition than trespass to chattels traditionally did).
443. See generally Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 BROOK. L. REV. 13 (2001) [hereinafter Mnookin, Fingerprint Evidence] (tracing fingerprinting's rapid acceptance by the courts and the public);
444. Jennifer L. Mnookin, Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial Construction of Reliability, 87 VA. L. REV. 1723 (2001) [hereinafter Mnookin, Scripting Expertise] (discussing the rise and fall of handwriting identification as a science).
445. Mnookin, Scripting Expertise, supra note 287, at 1728.
446. See Mnookin, Fingerprint Evidence, supra note 287, at 42-43;
447. Mnookin, Scripting Expertise, supra note 287, at 1783-84.