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

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®. "

Keywords: trademark, dilution, experiment, empirical, confusion