In your head

Rebecca Tushnet:

Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that “Kodak soap” was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark. Trademark owners think dilution is harmful but have had difficulty explaining why. . . .

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. Moreover, the harms it identifies do not generally come from commercial competitors but from free speech about trademarked products. As a result, even a limited dilution law should be held unconstitutional under current First Amendment commercial-speech doctrine.

Tell it, Rebecca! This is from the abstract of an article in the Texas Law Review called — bless her! — “Gone in 60 Milliseconds: Trademark Law and Cognitive Science.”

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So in the article itself, does Rebecca at least suggest we apply this reasoning to the utterly bogus concept of “initial interest confusion”?! YES!! I have been saying this for years: The concept of initial interest confusion is utterly unsupported by anything remotely looking like empirical evidence. So will judges addicted to this nonsense care now that a scholarly article has been written to make this argument? Uh…. um…. maybe. Some day.

I’ll certainly give them the opportunity.

So there is hope, no? Always bright-eyed hope. Hat tip to the Neuroethics and Law Blog.

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Author:Ron Coleman

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4 Responses to “In your head”

  1. February 29, 2008 at 3:45 pm #

    Maybe it’s just me, but the name “Tushnet” always brings to mind a silly image of a network of tushies.

  2. February 29, 2008 at 4:43 pm #

    Yeah but no one’s really supposed to say that out loud, Dan.

  3. Paul Friedman
    February 29, 2008 at 7:27 pm #

    Ron, thank you thank you thank you for trying to debunk the utter nonsense that is the initial interest doctrine.

  4. March 1, 2008 at 8:24 pm #

    Well, I’ve been burned, Paul.

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