The Psychological Foundations of Trademark Law: Secondary Meaning, Acquired Distinctiveness, Genericism, Fame, Confusion and Dilution

Abstract

The principal focus of Sections 43a and 43c of the Lanham Act is on the states of mind - particularly confusion, deception, and dilution - of the relevant public (e.g., prospective purchasers). Other key concepts of trademark law (acquired distinctiveness, secondary meaning, fame and genericism) also refer to psychological states of mind. Yet beyond acknowledging that these concepts refer to psychological states of mind, little has been done to describe how the vast body of relevant psychological literature provides an understanding of the development of and change in these psychological states. The objective of this paper is to remedy this neglect by discussing how the relevant scientific literature provides a foundation for greater understanding of these key concepts.