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Trademark Dilution and Emotion

Laura R. Bradford

American University in Cairo

January 29, 2009

Berkley Technology Law Journal, Forthcoming
George Mason Law & Economics Research Paper No. 09-08

The law generally ignores the role of emotions in consumer decision-making, although emotions are widely acknowledged to play a dominant role in shaping preferences concerning risk, borrowing, consumption and choice. Trademark law has been especially suspicious of the role that emotion plays in increasing demand for branded goods. This article argues that trademark law, and trademark dilution doctrine in particular, can benefit from an updated understanding of the influence of emotion on consumer decision-making. Modern consumer emotion research provides a sturdier justification for dilution protection than economic or cognitive science doctrines standing alone. This is because trademark fame, or familiarity, signals information about risk and quality to consumers through quick and efficient innate emotional response mechanisms. However, while reliance on fame lowers effort or "search costs" for buyers, it doesn't do much to promote trademark law's other stated aim: the efficient exchange of information about consumer preferences concerning specific product features, functions or quality. Instead, overly strict protection of mark familiarity through the law of trademark dilution can burden competitors who signal product quality and reliability using communication strategies besides fame. Therefore, this Article argues in favor of a very narrow dilution regime that will conserve the signaling value of mark fame for consumers but avoid unduly burdening competitor efforts to communicate product value through other means.

Number of Pages in PDF File: 60

Keywords: advertising, blurring, branding, free-riding, identicality, internal confusion, trade symbols, Trademark Dilution Revision Act of 2006, uniqueness

JEL Classification: K00, K19, L15, O33, O34, O38

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Date posted: February 1, 2009  

Suggested Citation

Bradford, Laura R., Trademark Dilution and Emotion (January 29, 2009). Berkley Technology Law Journal, Forthcoming; George Mason Law & Economics Research Paper No. 09-08. Available at SSRN: https://ssrn.com/abstract=1334925

Contact Information

Laura R. Bradford (Contact Author)
American University in Cairo ( email )
AUC Avenue - P.O. Box 74
Feedback to SSRN

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