Gone in Sixty Milliseconds: Trademark Law and Cognitive Science

Summary

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Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. Many courts have therefore been reluctant to enforce dilution laws, even while legislatures have enacted more of them over the past half century. Courts and commentators have now begun to use psychological theories, drawing on associationist models of cognition, to explain how a trademark can be harmed by the existence of similar marks even when consumers can readily distinguish the marks from one another and thus are not confused. Though the cognitive theory of dilution is internally consistent and appeals to the authority of science, it does not rest on sufficient empirical evidence to justify its adoption. In the absence of constitutional invalidation, the cognitive explanation of dilution is likely to change the law for the worse. Given the empirical and normative flaws in the cognitive theory, using it to fill dilution's theoretical vacuum would be a mistake.

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Gone in Sixty Milliseconds: Trademark Law and Cognitive Science

I. Introduction

Law attempts to shape human behavior and therefore can benefit from behavioral science. Psychology and economics can clarify legal concepts like intent and damages, and can predict the consequences of various regulatory regimes, guiding lawmakers as they seek specific goals. But jurists and legislators must be aware of the limits of science. Laboratory results may not reflect real-world experience. And even the most thorough model of behavior cannot tell us what laws are just.

Cognitive science is especially attractive to trademark law because trademark protection is premised on a psychological assumption: exposure to a mark will trigger ideas and emotions in the mind of a consumer. Traditionally, trademark law has measured these responses through circumstantial evidence and consumer-response surveys, but in recent years, research advances have promised to replace intuitions, whether courts' or consumers', with hard facts.

Neuromarketing, the investigation of marketing and branding techniques through observation of brain activity rather than consumer selfreports, is the most recent contender in the search for greater understanding of consumer behavior. Among other things, it illuminates the common wisdom that first impressions are cmcial. Researchers can now establish that it only takes fifty milliseconds-a twentieth of a second-for consumers to form opinions about Web sites.1 Once such an opinion is formed, cognitive biases make it easier for consumers to keep believing than to change their minds.2

Neuromarketing also appeals to the idea that there is an objective truth behind intangible brand values.3 It's well known that people like Pepsi better than Coke until they know what it is they're drinking, at which point preferences shift to Coke. Part of what people are drinking is the trademark. Magnetic resonance imaging (MRI) shows that different areas in the brain light up in blinded versus nonblinded taste tests.4 Positive associations with the brand change the experience of tasting soda, evoking memories along with immediate sensory impressions.5 Neuroscience thus promises to explain why we buy and to give advertisers information about consumers' brains that consumers themselves don't know. Much of this information is proprietary and inaccessible to academic research, but some is publicly available. Part II of this Article reviews the new theories of trademark value and their relationship to cognitive science.

Part III explains how some people have used cognitive science to explain the doctrine of trademark dilution, which protects against nonconfusing uses of a mark that nonetheless interfere with that mark's distinctiveness. Classic hypothetical examples of dilutive uses include Buick aspirin and Kodak pianos.6 The first federal dilution law was enacted in 1995;7 along with its state predecessors, it was hampered by the absence of a convincing justification for an expansive right to suppress nondeceptive uses of a mark.8 Trademark dilution has been subjected to persistent criticisms: that it is not well defined and that as best as it can be identified, it still isn't harmful.

Cognitive models offer hope of answering these objections by conceiving of dilution as an increase in mental or internal search costs.9 Consumers allegedly have more difficulty recalling, recognizing, and producing a diluted trademark, and correspondingly are less likely to purchase products or services branded with that mark. If the new cognitive account of dilution were to be accepted by courts, it could produce significant expansions in the scope of trademark rights under both federal and state laws.

The relevant legal concepts predate this new branch of marketing science, however, and do not map onto the research in the convenient ways dilution's proponents have so far asserted. Part IV therefore questions the descriptive accuracy of the cognitive/intemal-search-costs model. Major problems include insufficient attention to the contexts in which consumers encounter trademarks in the real world, misinterpretation of research into word frequency and associations, and failure to grapple with the possibility that what the law calls dilution may sometimes improve consumers' memories for a mark. This Part also discusses the concept of tamishment, for which empirical evidence is limited, and special problems related to consumer surveys seeking to uncover dilution.

Part V, accepting for the sake of argument the cognitive model's descriptive accuracy, deals with its normative implications-especially what it portends for the scope of the dilution right. We should not readily assume th...

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