The Science of Proving Trademark Dilution
109 Trademark Reporter 955 (2019)
22 Pages Posted: 18 Dec 2019 Last revised: 22 Dec 2019
Date Written: December 13, 2019
In this short commentary, we discuss our recent empirical scholarship on the vexing question of how to prove claims that a trademark has been diluted by “blurring.” We first discuss the current confusion in the federal courts over what qualifies as proof of dilution. We then report the results of two experiments that test different ways that plaintiffs may seek to prove these claims. Our bottom line is clear: the test that has been employed by most federal courts — what we refer to here as the “mere association test” — is an invalid measure of trademark dilution. The important question, which we take up later in this commentary, is how to improve upon that failed approach. We offer a new “association strength test” that can be used to prove — or, to disprove — dilution by blurring. This test offers a valid construct for measuring trademark dilution. Those who are interested in the full details of our research should consult the longer article, Testing for Trademark Dilution in Court and the Lab, 86 U. Chi. L. Rev. 611 (2019), from which this commentary is drawn.
Keywords: trademark, dilution, experiment, IP, intellectual property, law and economics
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