Reading list: dilution fails an empirical test

Christo Boshoff , The lady doth protest too much: a neurophysiological perspective on brand tarnishment, 25 J. Product & Brand Management (2016):

 

[C]onsumers’ emotional responses to a series of brand tarnishment advertisements are investigated in this study. The purpose is to assess whether attempts to harm a trademark by tarnishment lead to negative emotional responses and eventual economic harm, as suggested by many plaintiffs in trademark dilution legal disputes….

 

Twelve brands were investigated [using EEG and EMG]. The brands were selected because they were ‘well-known’ but not overly famous brands…. Participating subjects were exposed to a static, on-screen print advertisement of the senior brand (untarnished) and of the tarnished brand [tarnished using humor]…

 

In the case of exposure to the tarnished brands, all but two (the clothing retailer Cropp Village (EEG = 0.394; p < 0.05) and Sony Ericsson (0.4067; p < 0.05) of the EEG responses were neutral. However, contrary to expectations, these responses were also positive. This result implies that these three [two?] brands will most probably not be harmed if the ‘tarnishment’ consists of social commentary. It could also suggest that consumers can differentiate between different forms of tarnishment, and that tarnishment involving social commentary is not frowned upon. This may be because the consumer agrees with the social commentary, or finds it amusing.

 

… Based on the results of this study, it appears as if the tarnishment of relatively strong brands does not elicit much emotional response among consumers. Most neurophysiological responses to the brand tarnishment were neither negative nor positive.

 

This conclusion about neutral emotional responses holds, regardless of the temporal order of the exposure. In other words, regardless of whether the respondents were exposed to the tarnished brand first or to the untarnished brand first, the emotional responses were the same. The conclusion also holds for different product categories. In other words, the same empirical results emerged, irrespective of whether respondents were exposed to ‘rational/thinking’ brands or ‘emotional/feeling’ brands. These results seem to provide some support for the view that well-known trademarks/brands are practically immune to dilution. But it also shows that tarnishment cases should each be considered on their own merit….

 

The primary contribution of this study is that, for the first time, some light is shed on consumers’ emotional responses to brand tarnishment. Regardless of the neurophysiological measure used, the results demonstrate that the responses to brand tarnishment are generally neutral. The results thus do not suggest a strong likelihood of severe economic harm due to negative emotional responses to brand tarnishment among consumers.

 

On the title, see Christine Haight Farley, The Feminine Mystique of the Brand in Trademark Law Today.