Working Paper No. 09-08:
Trademark Dilution and Emotion
Date Posted: January 2009
Abstract (below) | Full text (most recent) on SSRN
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.