Session 4: The sociology and psychology of brands
Discussion leaders: Jeanne Fromer: A lot of work in this area. Some is about how consumers react to branding in systematic ways. Rule of thumb in talking to branding folks: if you pick a word as a brand, it should be 7 letters or less or 2 syllables or less. More systematic research bears this out in some ways: recognition/recall is better; to the point that consumers shorten Chevrolet to Chevy and Coca-Cola to Coke. Unusual spellings can help recall; names that remind people of other words like Verizon/horizon, Intel/intelligent, Viagra/vigor, vitality, aggression, Niagara. Arbitrary marks work better when a story can connect the underlying good/service. There’s no one branding choice thought to be better than others, but there are costs and benefits. Low-consonant, low-frequency vowel names for large cars; high-consonant, high vowel frequency brand name for fast cars. Sounds: “ah” like “frosh” sounds creamier than “frish” for ice cream. American English doesn’t like “uh”—dull, etc. Perhaps that’s why “With a name like Smuckers, it’s gotta be good” is the slogan. Blackberry connotes speed, reliability, accessibility, smallness through “b” sound in part. Strawberry connotes similar features, but not also relaxation as Blackberry does, and connotes slowness rather than speed. Some of this is culturally specific, but some is not. Animals make certain noses to connote largeness or smallness. High-backed vowels like “e” in flea connote smaller/less power than “ow” or “oo” throughout cultures. Choosing words in particular for brands isn’t just choosing an empty vessel, but already has a lot of meaning associated with it.
Also research well beyond this. People look at product packaging and that influences how they think about the product itself. If you put logo higher on the packaging = more favorable attitude if powerfully known brand, but if not put it lower. Aesthetic packages are preferred over standardized packages.
Social science literature typically doesn’t relate back to law; this is mostly marketing w/o thinking about costs of marketing choices imposed either on consumers or competitors. (1) TM law allows propertization, in some sense, of marks that might be more advantageous than others. Our job is to think about costs/spaces where we might be allowing propertization despite formal doctrine.
Earlier work on creativity and TM law. TM bakes in some encouragement to choose certain types of marks by making it easier to get more protection if you choose arbitrary or fanciful marks, which wouldn’t necessarily align with the marketing literature. Some would say if you’re successful with arbitrary or fanciful, you’re in the best possible shape b/c you’ll get the best strength.
Also huge body of work on what confuses consumers. Endogeneity question: some things may be confusing because we allow them to be called confusing and then most competitors stop doing that and it gets more confusing over time. When nonconfusing as matter of law, people get used to the practice.
Jeannie Fromer did the heavy lifting about what has reached legal academics and sometimes law. Hidden work that is proprietary. Tasting the TM in Pepsi/Coke studies.
What we know about brands v. what we know about TMs—Deven Desai has written about the distinction and the lack thereof that has been part of the problem. In some ways courts have created problems by conflating what businesses care about and what marketers talk about, brands, with what the law historically cared about, trademarks. Language of psychology is often thrown around freely, as in the old Mishawaka case where the court talks about what people have been convinced to think they want, but still endorses TM owner’s control over that value. TM information conception is TM as source indication—shortcut from mind to mind—versus brand: store and producer of social signals, saying something about the consumer and signalling specific qualities, such that interference w/ those signals even in the absence of interference w/source signification is a concern for TM law. I previously wrote about misuse of psychological evidence in claims to justify dilution law—a cause of action in search of a theory. Cautionary tale for © and patent, perhaps—individual points are picked up by advocates and arguably misused.
If the story of © is, in large part, it’s not as important as you think, that may also be the story of TM where confusion claims are likely overstated, and harm from confusion is also probably overstated. However, hope that we can get more consensus by going to empirical claims is probably futile, as Dan Kahan et al have said in many other legal contexts. Our morals are determining our reaction to empirical claims.
Skeptic about TMs as a reward for creativity except in the very broad and perhaps unhelpful definition if anything successful is an innovation, then yes, TMs do in some sense reward innovation. But brands generally trade on images related to things that are already popular: luxury, speed, cool. Strategies for becoming well known exist, though you can’t necessarily predict which ones will succeed—audience is a lot of the contribution to that. Skeptical in part b/c I was thinking about the European approach of TM as “incentive”: counting SKUs, correlating # of TM registrations with market success as evidence of successful incentive; seems to me to be a fundamental misunderstanding of causation and/or a failure to define terms.
Finally, and perhaps relatedly: sociology of registration: written about differences b/t registration and infringement regimes. Could supplement by doing more empirical work with examiners and registration attorneys: what do they think they’re doing?
Commentators: Madhavi Sunder: We’ve talked mostly about pro producers. Luxury brands offer the opportunity to talk about users, consumers, buyers, and the work they do. Signal distinction of buyer, communities to which she belongs, her personal identity. Barton Beebe has discussed what TM owners do to keep consumers in their place, but it’s very hard to keep them there. Consumers appropriate & perform luxury brands in unique/unexpected ways: $2000 boots combined w/a thrift store outfit. “Individual consumers create their own stories and they stretch their budgets”—excellent new book on Luxury Economy and IP edited by Sunder & Haochen Sun (in which I also have a chapter). Also Lemley & Dogan, Sonia Katyal. Brands are selling community, but they are creative products of consumers just as much as they are of corporations. Where is the creativity in TM and branding? Is TM creative in the literary sense or more in the patent sense of innovation based on/moved by science? Branding as science from producer perspective, but more akin to literary creations given how consumers use them—they’re stories/performances coauthored by owner & consumer.
Sci & tech studies: the way these objects move our world for better or worse: Marlboro man has blood on his hands. Apple’s “rip, mix, burn” helps us understand our own powers and perhaps our limitations. Native Americans internalize the slur “Redskins.” But now we see Asian-American ban seeking to register “Slants” to take back the slur. Brands don’t distinguish products, they distinguish people, as in Rochelle Dreyfuss’ 1990 article—the lingua franca of our culture.
Yesterday’s discussion of patent as brand: Today they’re not market driven but marketing driven—looking good, not doing good—image over ego incentivizes us to act. Not about how inventive your company is, but how inventive people think your company is.
Companies like Samsung are remaking themselves to focus less on tech breakthroughs and more about aesthetic allure of products and company as a whole. Turn to sensation has paid off—social and emotional connections w/ customers. Apple became most valuable company not by creating products that are tech breakthroughs but rather by creating products w/standout design. On design patents: can have doctrinal payoff as we think about turn to design patents and their desperate need for reform. Iconic design as melding simplicity, utility, ease of mass production. “Wicked problem” of design thinking is insistence on lack of rigid boundaries b/t industrial engineering, marketing, design—that can actually help us approach design patents doctrinally differently. TM and © try to push functional aspects outside protection; skeptical eye towards hybrids in functionality/creativity should lead us to be more skeptical in design patent as well.
Mark McKenna: Research in this area is about brands and not TMs, and those aren’t the same. They’re not asking the same questions we are. There is a line of literature that’s about confusion, but if you read those studies, they’re actually about association—whether consumers link one thing to another thing. They’re not about source confusion. There’s often an agenda in those articles to redefine the legal terms to match the marketing terms, and that’s important to recognize. One reason that diving into this literature is important: if you read it through the lens of the doctrine, you think it’s not about the right questions. If you read doctrine through the lens of these studies, modern TM law makes a lot more sense descriptively. Plaintiffs use the tools they have to do what they want.
Where the literature is: the two deepest areas are done by social psychologists and marketing dep’ts; they are similar but don’t talk to each other, don’t cite each other, don’t publish in the same journals. These are primarily about the ways consumers react to various branding strategies: brand extensions, development techniques; studies are done for managerial purpose. Consumers’ interaction w/favorite brands resembles their interaction w/religious icons. fMRI research shows similar brain activation. [But cf. doubts about fMRI research.] Opportunity for researching how people form communities; they form around brands, as anthropologists like Rosemary Coombe understand.
Holistic branding: a lot of ads for tobacco got banned in Europe; Marlboro started paying bar owners to use the color red and a Western motif b/c they had pretty good evidence that reminded people of the Marlboro man.
Literature suggests at consumers rarely draw bad conclusions about the original goods from thinking goods are associated, unless the goods are highly related. But the literature does show some kind of “harm”—the impact on future brand development/narrative of the brand. More about market preemption or derivative work rights. Also interesting work on interference w/decisionmaking, including the problem of over-choice in the market. Notable how little of that is about TM; if we were serious about reducing search costs, TM is a terrible tool. In some cases the research suggests that some of the things we incentivize/protect through IP contribute to the problem of over-choice—attempts to differentiate in the market based on fashion/similar motives. Adding additional layers of IP may make that problem worse. [This is an example of “good from individual company perspective, bad for social welfare”—differentiation from other products in the same category across multiple features may make it harder for consumers to compare and to make decisions, but that can be a private benefit if it means they stick to you.]
What research we don’t have: not very much about the way companies think about TM as legal entities as compared to other kinds of IP. “Why do companies patent” v. “why do companies create patentable subject matter”? Why do companies choose TM/branding instead of other strategies? The research is so heavily about consumer reaction. Proprietary research might be one of those places.
Mark Lemley: Role of functionality in TM law—maybe we should be defining many many more aspects of a brand as functional than we are. If not, maybe there’s something wrong w/our current idea of functionality and we need to accept our protection of things w/functional characteristics and give up on the idea of excluding functions. Another thought: perhaps we ought to be very skeptical of the idea of inherent distinctiveness. Just as we decided not to assume anything is inherently distinctive in product design, maybe we should do that for word marks as well if there is a bunch of subliminal signaling drawing people in that isn’t related in the first instance to that source until secondary meaning develops.
RT’s claim that empirical evidence gets ignored and filtered through morality: most profoundly depressing thing he’s heard in 2016, the year of Trump [and profoundly related to that!]. Resists the notion it’s true, shouldn’t we give up the game? Moral argument won’t be related to good policy outcomes. [I don’t think that’s inevitable—Wal-Mart is a case packed with statements that have the form of factual claims, but what’s driving it is a commitment about competition. Facts are important because we shouldn’t be wrong, but we have to do the moral argument coextensive with that.]
Rob MacCoun: Lots of psych research is associational in nature: exposed to X, think about Y. Bear in mind these associations are asymmetrical. A evokes B does not tell you how well B evokes A. [I wrote about this in Gone in 60 Milliseconds too.] RT’s work: if you get into a cab in NYC, “Kennedy” is not ambiguous despite the existence of Differ w/RT b/c there is dilution if you’re not in the context of being in a cab, every new “Kennedy” object you encounter makes you less likely to think of the airport. [My point is that mostly we do have the context.] Psych is a catalog of phenomena, not a grand theory. You shouldn’t start w/any one and build a theory of TM or patent from it. Psychologists are just as guilty of that—we think we see immediate relevance but it can be misleading b/c of all the other things that impact these issues. Design studies specifically to answer TM questions.
McKenna: Q is whether empirical claims are really driving the bus here. TM is shot through w/claims that it’s building a world based on how consumers really behave, but that’s not true. What MacCoun counsels against is exactly what TM does. We’re making lots of choices about when we care about the empirical facts, and when certain facts should override others. Behoove us to be clear about when we’re normative and when we’re empirical. Wal-Mart and Dastar intermingle—tendency to make normative arguments in empirical-sounding terms.
Jessica Silbey: reproductive choice/Carhart—same thing, Justice Kennedy picked an empirical claim about how women may regret abortion. That was from a social movement around abortion. Then social movement countered it, creating empirical studies/recording of facts rejecting that statement and the meaning behind the statement. Now, you get a total reversal in the SCt about the “regret” narrative and the role of law in changing whether “regret” happens. What would that look like in TM. If the issue is the normative environment, what would a movement look like to capture the freedom of expression or competition?
Emotional attachment people have to marks as names. My research suggests people talk about brands as their “babies.” When the fight becomes about one’s emotional relationship to one’s company’s name rather than consumer confusion; those cases are deeply unsolvable. Becomes a crapshoot. In other areas like family law or defamation, the courts are willing to say, I know you’re hurt, but too bad. Why are they not willing to do that in a TM case?
Sprigman: Maybe they will do that in dilution, in the 1A context.
Irreducible minimum of confusion as a key concept. When I try to explain how much confusion is necessary for liability, students ask whether they’re confused or just making associations b/c people have a rage to make associations. 80% of people aren’t confused. If we disallow the D from using it’s mark, we may right a certain percentage of confusion, but in the process we deprive a bunch of other people of a tool they’ve learned how to use, including the associations they’ve made w/the D’s mark. Built in to TM law must be the idea that this isn’t a big deal, this content is readily replaceable and consumers will heal. What Fromer said suggests that this won’t be the case always; the second best may be quite a bit worse in some product categories. Consumers won’t heal fully. If that’s the case, implication is that if we believe the linguistic story about how some marks are more appropriate to some product categories than other marks, we have to do both sides of the equation.
Lemley: one area where we do this, for precisely this reason, is genericide.
Andrew Torrance: Trade secrets (Coca-Cola, KFC) being used as TM; © used as patent for software; TM used as patents (Traffix); patents used as © in the design patent context. Bleeding of rights into rights. Porous boundaries.
Fromer: Unclear what we mean by “distinctiveness.” Indicative of source? That’s just indicating an association, but if we care about certain costs, that might not be enough. Another way to think about it: what associations does it trigger in people’s brains? If it lights up a lot of connections w/the underlying product/service, maybe we should worry about giving exclusive rights in that claimed mark. The less it’s associated w/other things, the less we might want to care about granting rights. Current categories aren’t fine-grained enough to deal with that. Psycho-linguistic literature might be helpful here.
Sunder: Heightened standard for product design; two functionality doctrines; idea that labeling products can avoid confusion—TM and trade dress doctrine can be powerful tools if used properly. Design patent is where companies w/broad conception of “brand” are turning there b/c there isn’t a functionality constraint in any real sense. Design patent can cover ease of use. We should expand our conversation to design patent. [Though the problem is that no principle of psychology or sociology presently would limit design patent rights, precisely b/c the doctrine says that functionality in the TM sense doesn’t matter.]
Lisa Ouellette: Linguistic functionality. Matter of degree: Viagra is better than control over “erectile dysfunction”—we shouldn’t get rid of tools pushing companies towards one end of the spectrum.
Pedraza-Farina: There is research on brand communities, in terms of McKenna’s point. An interesting way to think about them. Are those of particular concern? Maybe they have ability to manipulate the brand, maybe they are the ones who could be affected by dilution (or couldn’t be).
McKenna: Stimulus generalization isn’t limited to words. Many marketing folks have been trying to count stimulus generalization as confusion. Study about whether people generalize from product packaging characteristics, stripped of any TMs: clear plastic in a particular shape. The kinds of things that consumers thought when they saw another package of candy in the same sort of package: oh, that’s also refreshing and minty; chewy like gum; taste good—they generalize all sorts of product attributes based on packaging. If we question this about words, this is a generalizable problem through TM.
In thinking about number confused, consider longstanding debate around whether TM is for protecting consumers or not. Courts have internalized harm to consumer idea—even 20% confusion is harm to that particular consumer. Difficult to hang on to notion of consumer focus if we continue on this road, esp. with addition of design patent. More focus on using these things as interchangeable IP tools=less focus on consumer.
David Fagundes: Managing TMs to avoid associations w/outlier communities: Harley-Davidson was anxious about associations w/retirees—took away the edge. Plausible that brands are managed to avoid certain communities, but not necessarily as you think.
Mark Suchman: though the politics of overtly opposing that would be just as bad as for opposing other groups.
Dan Burk: Traditional knowledge/preserving traditional community; fan communities that coalesce around copyrighted properties; knowledge communities in patent. There may be something there—do we want the TM owner to be a kind of fiduciary and have obligations to preserve that group?
Stephanie Bair: interested in the ability and conscious effort by brands and branders to bypass conscious rational decisionmaking and evoke these visceral responses. Tension b/t that and traditional efficiency rationales of reducing search costs and trying to get brand owners to invest in quality products.
McKenna: so much depends on what you identify as characteristics of the product. Laura Bradford has nice paper on emotional valence of brands. Should we differentiate that from other characteristics of the brand?
MacCoun: lots of research on subliminal advertising. We know that it’s real but ephemeral. Dominant theory of persuasion is elaboration model that distinguishes b/t peripheral cues and central route to persuasion. Those unconscious associations are easy to create and also easy to knock out by the competitor—only good until the next unconscious source comes along with its own cue.
McKenna: not so much unconscious as emotional appeal/System 2.
Tim Holbrook: who controls the market? Inclusion and exclusion: using the power of the state to do that. That broader context gives a different angle on the problem.
Burk: If we’re protecting visceral/emotional reactions in TM, there’s a strong strain of 1A cases saying the 1A is about deliberate, thoughtful, rational reactions. My sense is that one of the friction points in the law is TM and the 1A. Something interesting there about state intervention into expression. If one is really about visceral reactions, what relation to 1A values?
Sunder: Lemley & Buccafusco are writing about functionality screens. Science of TMs: one question is that we could push towards calling everything functional—there’s a science to how we read the red colored sole. Couldn’t we take that into © as well?
Lemley: branding claims: not just a move away from consumers, but a move away from unfair competition: more property, “if value then right” approach. He’s skeptical of that move; not clear to him that it’s socially desirable thing for gov’t intervention to encourage. Morally neutral (v. inventions, expression). Also not clear we need legal incentive given other incentives to engage in this type of branding. To the extent it’s valuable to encourage a religious-like reaction in people, perhaps making them happier, that is collaborative and not unidirectional. A law facilitating that still shouldn’t be “I made it and I own it” even to the extent that © and patent are b/c that value is collaboratively created. People feel proprietary interest in a brand they’ve helped to create. Readers do also connect to books, but even more true in TM.
McKenna: One immediate difficulty in imagining a world that only protects rational decisionmaking is that literature demonstrates it’s impossible to disentangle. The nonrational stuff conveys info about tangible product characteristics in interesting ways. Lemley’s point: you might recognize that it’s fine for you to build that with consumers. That isn’t deceptive and can’t be separated from other stuff. But we should recognize the same when other people use the mark nondeceptively. The state wouldn’t get involved w/o deception; if we allow TM owner to create meaning, everyone else should be allowed to do so too. TM’s got a bunch better at this in the 1A context over the past decade.
Silbey: people talk about how many TM registrations they’ve collected w/pride. They say collection is important for the business model: TM was the most valuable asset. Can correlate value to number and breadth of marks. Hard to square w/doctrine of TMs as distinct signifiers. Courts say there are lots of options, but TM owners feel special connection w/theirs. TM as limitless v. TMs in practice has a social life/actual practice of collecting marks.
McKenna: Stacey Dogan argues that we need competing counternarratives about the harms of protection—speech, competition. It won’t be enough to say “you’re making these rights too broad.” That maps pretty well descriptively to the places where TM has swung back in the past few decades—increasing bite of functionality, Wal-Mart. Other things courts seem to get is boundary questions—when this starts to look like ©, that bothers them; they want to say there’s a reason for having different IP regimes.