Clearing Up Some Confusion About Dilution: A Reply to Hal Poret

Trademark Reporter, Vol. 112, No. 3, pp. 684-94, May–June 2022

NYU School of Law, Public Law Research Paper No. 22-43

12 Pages Posted: 24 Jul 2022 Last revised: 19 Sep 2022

See all articles by Barton Beebe

Barton Beebe

New York University School of Law

Roy Germano

New York University School of Law

Christopher Jon Sprigman

New York University School of Law; New York University (NYU) - Engelberg Center on Innovation Law & Policy

Joel Steckel

New York University (NYU) - Department of Marketing

Date Written: July 1, 2022

Abstract

In this short commentary, we reply to Hal Poret’s critique of a series of experiments on trademark dilution that we summarized in this journal back in 2019. In our view, Poret’s critique omits important findings from both our University of Chicago Law Review article ("Testing for Trademark Dilution in Court and in the Lab," https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2960082) and The Trademark Reporter (“TMR”) commentary that summarized it ("The Science of Proving Trademark Dilution," https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3503685). We’ll correct the record here. But perhaps more importantly, we’ll engage with Poret on the basic question of what empirical work in trademark dilution litigation is meant to accomplish. To do that, we’ll delve (briefly) into the shaky conceptual foundations of trademark dilution. As we’ll see, Poret’s response is founded upon the same conceptual confusion and unsupported presumptions about the workings of human cognition that beset current thinking about trademark dilution generally. These difficulties are resolvable only with empirical investigation, which our work attempts to set on a firming footing.

Note: This article is now published in the May-June, 2022 (Vol.112, No. 3) issue of the International Trademark Association’s Trademark Reporter®. "

https://www.inta.org/wp-content/uploads/public-files/resources/the-trademark-reporter/TMR-Vol-112-No-03_Commentary-Beebe-Germano-Sprigman-Steckel.pdf

Keywords: trademark, dilution, experiment, empirical, confusion

Suggested Citation

Beebe, Barton and Germano, Roy and Sprigman, Christopher Jon and Steckel, Joel, Clearing Up Some Confusion About Dilution: A Reply to Hal Poret (July 1, 2022). Trademark Reporter, Vol. 112, No. 3, pp. 684-94, May–June 2022, NYU School of Law, Public Law Research Paper No. 22-43, Available at SSRN: https://ssrn.com/abstract=4151816

Barton Beebe

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Roy Germano

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Christopher Jon Sprigman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
NY, NY 10012
United States

New York University (NYU) - Engelberg Center on Innovation Law & Policy ( email )

New York, NY
United States

Joel Steckel

New York University (NYU) - Department of Marketing ( email )

Tisch Hall
40 W 4 St.
New York, NY 10012
United States
2129980521 (Phone)

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