Trademarks and Emotion
Positive affect from famous marks stems largely from familiarity and to a large extent is independent of brand meaning. Regulating the emotive power of trademarks by giving TM owners control of follow-on uses may be harmful overall.
People have extended the search costs account of infringement to dilution: dilution causes consumers to think for a minute before connecting the mark to its goodwill, reducing its capacity in conveying information. This is an informational, not evaluative, account. We can see why people have been skeptical – does a few extra seconds in the grocery store matter?
Look at emotion: Ralph Brown’s initial account of brands being used to mesmerize consumers into paying more for identical equality. More recent scholarship is that the emotion is part of the benefit of the brand: if women think that floor wax will make their husbands love them more, they’re actually getting more of what they value. It’s paternalistic to argue otherwise. But under either account, consumers are posited to weigh costs and benefits based on associations and then make a rational decision.
Bradford focuses on a subset of emotion, affect: a primal feeling of like or dislike experienced in response to a stimulus. Emotions allow us to make decisions; people with certain brain damage can reason rationally and identify costs and benefits, but they can’t decide because they can’t classify stimuli as good or bad. Affect is especially important in low-involvement processing situations, when the decisions aren’t all that important to them or when people are pressed for time.
Familiarity is a great predictor of affect. People often misattribute appeal to the stimulus rather than to the ease of processing the stimulus, and they even concoct rational explanations for this. Brain imaging suggests that purchase decisions involving familiar brands involve more emotional areas of the brain, rather than memory-storage areas, compared to decisions involving unfamiliar brands.
Possible justifications for dilution: If we see things too often, we get bored with them, though it’s highly contextual. There is some evidence that promiscuous use may make a stimulus “unsafe” – we no longer know what it means. It’s possible that your pause to think may make you get angry at the brand and punish it for making you think, turning tarnishment into a subset of blurring. But now we’re talking just about the primal affect arising from familiarity, not the specific brand meanings trademark owners say they want to protect.
If we accept that dilution causes involuntary changes in preferences, and grant protection on that basis, we’re engaged in a funny kind of paternalism. It’s not protection of rational choices, nor even protection of positive emotional associations specific to the brand. We’re protecting convenience – familiarity -- in its bluntest sense, without adding to the value of information in the marketplace; the credence associated with familiarity isn’t associated with quality, value, or anything else. In other areas of the law we don’t grant rights to mental processes in this way. The information produced as a result of free riding may be better information, letting us know about other options or richer meaning.
Christine Haight Farley, American University Washington College of Law
Mental Associations and Evocations: the Slippery Slope of Dilution: AKA Frank Schechter was a man ahead of his time, but now he is dead
Harley Davidson sells motorcycles, but also cake decorations. TMs are being marketed for something much broader than source. Harley Davidson, according to the owners, represents “Americana” – a promise to represent customers and fulfill expectations. The language of “promise” is quite common. Corporate extension licensing is widespread: real examples include Oreo Fun Barbie, Chanel skis, and zillions of Virgin products. Compare to Buick shoes, Kodak pianos, etc. – Frank Schechter ’s examples of dilution.
These are not different in kind. The only difference is that in the real examples the use is authorized. Yet authorization wasn’t the ill Schechter sought to remedy. He spoke of damage to distinctiveness. Schechter wanted to preserve the association of the mark with goods, shuddering to think of Ritz-Carlton coffee not because of the problem of “which Ritz-Carlton”? but because he wanted Ritz-Carlton to mean just one thing. The problem is that TM owners no longer want that type of exclusive association.
Why? Brand owners say new brands are too risky and expensive; there’s too much noise in the market; it’s beneficial to the brand. Evian licensed its mark to J&J to produce a hydrating face cream, which helps Evian promote the brand attribute of hydration. Does this cause dilution? No, the core brand isn’t harmed. And if there isn’t inconsistency with the brand attributes, there’s no dilution from an extension. Dilution only occurs where the use is inconsistent with brand attributes and the inconsistency is salient to consumers. Virgin has a history of brand failures with positive effects on the mark; Virgin is a rebel/challenger even when it fails. A Harley Davidson toilet seat shouldn’t dilute the mark because it fits the brand attributes, nor should a cheaply made Harley Davidson leather vest. Harley Davidson pastry, however, may have a dilutive effect.
Judy Zaichkowsky, Faculty of Business Administration, Simon Fraser University
Explaining Dilution Through Balance Theory
People seek to balance cognitive and affective states – people avoid information inconsistent with their attitudes, etc. Companies want people to have positive attitudes towards goods & services, inducing positive behavior/purchase. The goal is to avoid tension (e.g., being enemies with my friend’s friend). A simple strategy: associate your product with one for which your audience already has positive feelings. Celebrity endorsement is a classic example; rap stars singing “Pass the Courvoisier” leads consumers who like the song to like the liquor.
An example of unlicensed use: posters with Girl Scouts used to associate them with unwed pregnancy. People who like Girl Scouts rarely like unwed mothers, so seeing the posters makes them tense and they need to resolve the tension by adjusting their favorable attitudes towards Girl Scouts down or unfavorable attitudes towards unwed mothers up. This is dilution.
More recently: clubs banning particular brands for association with gangs; these brands are expensive. If you wear the brand, you are labeled by association, and the association is negative; it may harm the brand value. UK pubs have banned young people wearing Burberry for association with “football hooliganism” (chavs). They hijacked the Burberry brand.
(Comment: How interesting that these examples are not things to which American dilution law could apply – nor even European law, at least in the club examples. This is my point about the TDRA targeting the mote in a TM owner’s eye while ignoring the beam right next to it.)
Marketing solutions: change look of brand, end production of branded baseball cap.
Moderator: Dorothy Glancy, Santa Clara University School of Law
Q: How is emotion connected to balance theory?
Zaichowsky: It fits right in, with all the products you use to make yourself feel better – chocolate, diamonds, etc., though people aren’t like that about toilet cleaner.
Bradford: Some research suggests you can be emotional about toilet cleaner in a primal sense; you don’t care at all in any overt way, but you react well to familiarity that provides a sense of safety.
Lemley: To what extent does blurring require some sort of misleading? There must be some way in which consumers are led astray in your model.
Bradford: It depends on how legitimate you think familiarity is in expressing a true preference of the consumer. It helps us conserve cognitive resources, so we feel positively towards the brand/trust it; a free rider jams that signal and makes us feel the brand is riskier. We could call that misleading, but we could also say that the jamming is as neutral as familiarity; both are disconnected from specific information about the brand. The dilutive use tells you that the brand is popular, interesting, etc. Louis Vuitton case: the fact that it’s used for a dog toy tells you that some people find the brand pretentious. Consumers might feel more negatively about the brand after exposure to the dog toy; an involuntary change of preferences, true, but Louis Vuitton’s fame was also causing involuntary change of preference.
Q: Is there any remedy for what happened to Burberry? The chavs weren’t using it as a brand.
Zaichowsky: Sure they were, they were using it as an identifier for … whatever.
Lemley: It’s the “whatever” that’s the issue.
Zaichowsky: I’m just a marketer, giving you examples. Burberry had no choice but to change away from the plaid.
Q: To what extent is this really an issue of counterfeiting? The chavs were using a bunch of counterfeit goods.
Zaichowsky: Balance theory doesn’t care whether it’s authentic Burberry or not. It’s the image that matters.
Q for Farley: So if Harley Davidson markets toilet paper, that’s not dilution, but marketing bidets would be?
Farley: Yes.
Q: Wouldn’t that make bidets into Americana?
Farley: They’d have an uphill battle on that one.
Mark McKenna: There is a bunch of evidence that brand extensions don’t have feedback effects, but Zaichowsky offers examples where there is negative feedback. But these are noncore, communicative uses; the ones that don’t matter are the core trademark uses. The statute only covers those, but the research tells us that those are the ones we don’t need to worry about.
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