Jim Gibson, Against Reputation
In contracts, defamation, TM, conceptions of reputation are
misguided. Assumptions about accuracy, reliability and value of reputation are
blithe/unsubstantiated. How is reputation constructed in law? Regard that
consumers have for a quality of a firm and its products. Heart of the paper:
looking at how consumers obtain and process reputation information; how firms
cultivate reputation; and how info intermediaries attempt to solve some of the
problems/failures of reputation marketplace.
Specific reputation: firsthand impressions. We only tend to
remember bad (or good) especially when forming moral judgments; we tend to
remember good stuff about competence; we’re not good at remembering experiences
in general. Our impressions once formed resist new contradictory information.
Not dynamic/responsive!
General reputation: second-hand impressions. Those aren’t
actually shared very much. The average Amazon product w/at least 1 review has 2
reviews (median). But if what is shared is a good representative sample, that
would be ok—but what is shared is unrepresentative. Bimodal distributions with
J or U shaped curves—they only share really good or really bad experiences. But
Consumer Reports and other forced reports have a bell curve distribution. We’re
also really bad at interpreting aggregated data—people pay attention to total
number of negative reviews on eBay and not to the percentage thereof.
Firms don’t just sit back and let consumers form
reputations. Traditional advertising can change firsthand consumer impressions,
both pre and post experience—telling consumers coffee isn’t bitter makes their
impressions of bitterness change, etc. Ad volume has changed though—3000
ads/day which is 100x 1970s (though estimations of that are hard to verify).
But repetition works so it’s more effective in changing consumer perception.
Third-partying: making it look like info is coming from disinterested third
party rather than from the firm. Influencers, fake reviews, etc etc. B/t 1/3
and 1/6 of reviews may be fake online; and even small differences matter—half a
star in Yelp is worth 20% increase in reservations. Dark patterns. If it’s
cheaper to compete on subjective brand characteristics than on other metrics of
quality, then producers will do that. Some say that this is real value if it
exists in consumers’ minds, which may be folded into our conception of quality,
but if we do that it needs to be a conscious decision about what kind of
consumer economy we want—brand premium for subjective branding experience.
Info intermediaries: Certifiers can’t keep up with the
volume of goods. They don’t improve reputation so much as marginalize on it—you’re
no longer relying on past encounters. What about aggregators? Suffer from problems of general reputation and
targets of fake reviews. Both groups are firms themselves and face same need to
cultivate reputations of their own and same pressures. Revenue models almost
always end up dependent of firms whose products are reviewed; Consumer Reports
is the very rare exception. Aggregators are often purchased by the industries
that they are supposed to rate—Rotten Tomatoes is now owned by NBC Universal,
GoodReads by Amazon, TripAdvisor by Expedia.
Reputation’s deficiencies are disconnected from the legal
story we tell ourselves.
Mark McKenna: Nature of the way that we encounter marks in
the environment we live in now. Are there legal changes that could make
reputation work, or should we reimagine what law should be like? Could pick one
place to say a more realistic account of reputation would mean X.
A: struggling with this.
Jeanne Fromer: often people say that TMs aren’t as necessary
any more b/c of aggregators, but the areas of law may matter much more in a
system where there are lots of people trying to game reputation. The
reach/extent of it is greater b/c Amazon filters what we see in the first
place.
RT: Capitalism at large also has effects on individual reputation:
Pervasive misapprehensions about sponsorship, like misapprehensions
about who sponsors big sports events—consumers are just convinced it’s Nike
pretty much no matter what; Beebe et al’s
work on dilution that shows that a putatively diluting product can destabilize
consumers’ evaluations of all products they encounter soon thereafter. Courts
lack ways to appreciate that. Your project could fit into the role of
probabalistic judgments in law generally: maybe we just should be honest that
we are willing to sanction particular interventions in the info market b/c we
think they’re wrong (or that it’s not worth taking the risk of this particular
effect on reputation).
Legally: Falwell v. Hustler and its application in lower courts—anti-evasion
principle.
Betsy Rosenblatt: This should be a book! Focusing on changes
that make law both more and less important.
Glynn Lunney: why does reputation matter? Perfect
information would make reputation unnecessary. Why are people hiring fake
reviews when consumers pay attention only to number of negative reviews? Is
that rational of consumers or of fake review producers? [Gibson points out that
some hire fake negative reviews of competitors or even of themselves to try and
get negative reviews taken down as inauthentic.] Using defamation’s falsity
standard may be help.
Gibson: Defamation is his foil b/c it actually uses falsity
as a guardrail to prevent it from constraining most effects on reputation.
Jeanne Fromer, Against Secondary Meaning
Booking.com’s Super Bowl ad leaned in to the literal meaning
of the name; Off-White has been going back & forth with PTO over “for
walking” for shoes, and PTO said it was descriptive. Off-White is trying to
show secondary meaning. Conceptual relationship b/t putative mark and the
relevant goods. Does adding quote marks make it “sarcastic” and thus
protectable? Vagisil: opposed registration for vagi-formative mark for product
for vaginal use. Confusion turned on secondary meaning/strength, and court
found that there was likely confusion despite conceptual relation of vagi- to
product.
Protecting relatedness of term to product harms competition;
narrows consumer attention in similar ways. Might misdirect consumers from
other possible products.
This is in significant part due to secondary meaning’s centrality
to TM, and other concepts would do better at serving TM’s goals. Right now, it
plays a huge role in both protectability and scope. If it’s not perceived as a
mark it’s not serving TM’s goals. But courts have developed this further
w/Abercrombie spectrum. Secondary meaning is relevant to all Abercrombie
categories. Dangers of enshrining secondary meaning:
Ease of establishing it under current doctrine. Expensive to
show it by surveys; most show it by circumstantial evidence of advertising and
sales. Courts are varyingly strict about whether the ads/sales helped
established secondary meaning, but often less strict. Intentional copying by D
often leads to presumption of secondary meaning. Registration + 5 years gives you
incontestability, even if it shouldn’t have been deemed inherently distinctive
in the first place. Tom Lee et al.’s coauthors: easy to manufacture secondary
meaning w/contextual clues in packaging.
Why not just raise the bar? Enormous distributive
consequences for businesses w/deep pockets that can afford to run surveys, also
show more ads/sales than smaller businesses. TM should not raise barriers to
entry based on TM law, so giving big businesses more access to rights in
descriptive terms is distributively improper.
But there is a classification problem—marks that have been
found fanciful include SEGWAY, PERCHVILLE for a fishing competition, MIRACLE
SUIT for slimming bathing suit, TELMEX for Mexican telecom company, JAYCEES for
Junior Commerce, and many more. RADIO SHACK found to be arbitrary; K2 for skis
which is the second highest mountain in the world; MATERNALLY YOURS for maternity
clothing; SEVENTEEN for the teen magazine. Suggestive: CITIBANK, DIAL-A-MATTRESS,
POM for pomegranate juice. Courts get this wrong a lot, presuming that
secondary meaning exists.
Law underemphasizes coexistence of primary and secondary
meaning—it assumes that the primary meaning ceases to exist once secondary
meaning is acquired. Proposals to use secondary meaning to protect generic
terms forget that there was a primary meaning.
Legit businesses have incentives to develop secondary meaning
generally, regardless of what TM law says (except, she says, for businesses
that want to copy and businesses that adopt descriptive marks to show up in
people’s searches—a legit business strategy). Money spent on most expensive ads
is often for arbitrary and fanciful marks.
Rather than trying to solve all these problems w/secondary
meaning, we should use primary meaning as gauge for secondary meaning. When the
association is too close, don’t allow protection in the first place. VAGISIL is
a good example: vagi- means related to the vagina. In the actual decision, 66 other
products in the same category started w/ the same letters b/c they didn’t have
many practical alternatives [but the court discounted that b/c it called that “generic”],
whereas STARBUCKS is conceptually distant from coffee and NIKE’s association
with Greek goddesses is also too distant. Replace/collapse Abercrombie
spectrum.
Harder to think about what to do about scope. Secondary
meaning is connected to likely confusion. Sliding scale of secondary meaning—courts
do this anyway without saying this. Zatarain’s Fish Fri=found that small survey
was enough to establish secondary meaning, while Tender Vittles from around the
same time had Purina spend $4 million in one year and become market leader and
still not enough for secondary meaning. We might also draw from reverse confusion,
where courts say that they’re willing to accept very little secondary meaning
for a term for a successful reverse confusion case. Requirement of correlation
to business footprint would require more from the Coca-Colas of the world.
Mark McKenna: you made a powerful argument that it was a
mistake for us to have abandoned technical TMs. Secondary meaning was not a
condition for TM status in the past, but it started out as a tool for whether
you could get more limited unfair competition remedies even though you don’t
have a TM. Scope problem goes largely away if you don’t call these TMs. What
you’re arguing for is a system we used to have.
A: partly yes and partly no. Abercrombie has outlived its
usefulness. Courts are too formalist about it. We could keep building a
Ptolemaic model or we can chuck it and start again. A lot of the older cases
get
RT: Why isn’t this against inherent distinctiveness? Or
against descriptiveness? Is it also against genericity? Also another group of people who don’t use
secondary meaning are Amazon sellers—Grace McLaughlin’s note.
A: Piece is against the Abercrombie spectrum—both too broad
and too narrow to say against secondary meaning.
Sari Mazzuco: Abercrombie as heuristic to simplify process
of establishing protection. Shifting away from heuristics to different
empirical approach would have different set of distributional problems. Roughshod
rule of thumb approach has problems too.
A: not saying anyone should have to show secondary meaning—it
would be conceptual relatedness that is key. Though it would have
distributional effects in terms of choosing a “good” protectable mark in the
first place—people with money would have a better chance at that.
Leah Chan Grinvald: Does social media make it easier to
establish secondary meaning with virality? Doesn’t descriptive fair use
preserve the primary meaning already? Why not just get rid of inherent
distinctiveness and require all marks to have acquired distinctiveness?
A: on the one hand, it’s too easy to establish secondary
meaning, especially for businesses w/deep pockets. Her worry is that if it’s
too easy, there’s a competitive advantage to picking marks w/strong conceptual
relatedness; regardless of distributional effects it’s wrong to center
secondary meaning. Even if it becomes easy for a small business, they get a
persistent competitive advantage that TM shouldn’t be enshrining.
Glynn Lunney: Why have courts made these moves? Don’t make
booking.com worse than it already is—it doesn’t really say that generic terms
can be protected if they have secondary meaning [it only says that if it has
secondary meaning it can’t be generic]
A: Internet = everything is on steroids; old problem w/ new breadth.
McGeveran: this really is Against Abercrombie—reputation and
scale of protection is a problem. Big companies with more to spend on marketing
get a competitive advantage; is TM law cool with that? Current answer: yes.
A: TM shouldn’t amplify intrinsic advantages.
Justin Koo, Communication to the Public - The US Versus the
EU Experience
What approach should we have? If you look like previous
infringers, is that enough to make you an infringer/vice versa?
YouTube decision in EU: what lessons from what would have
happened in US?
Internationally, it’s exclusive right to communicate to
public by wire or wireless, including access at a time/place of individual choosing.
Covers both push (broadcast) and pull (on demand) technologies.
Problem: easy to say that someone has uploaded something w/o
authorization and is liable. But what about platforms? Who is doing the
communication to the public? Bottom line: shift liability, in practice, away from people committing the infringements to
platforms?
US approach: incorporated into existing rights of
distribution, public performance, public display. That is internationally
compliant but how is it built out in the courts?
Key US cases: Netcom, Perfect 10, Aereo, Giganews, Goldman
v. Breitbart, Polyvore. US test: indirect infringement where there is
knowledge; volitional test; server test; safe harbors.
EU: direct infringement where there is knowledge of
infringing content (Pirate Bay, despite not hosting) or where service
provider gives access to works uploaded by users (subject to limits). Court
focused on whether YouTube looked like the Pirate Bay—was that an act of
communication to the public? Court fudged and said YouTube wasn’t liable b/c
they didn’t look & feel like an infringer; they had Content ID and honored
notice and takedown and had other worthy uses. Is that a good enough test? [Sure seems more
natural for an indirect infringement analysis.] Perhaps motivated by the fact
that the EU safe harbors are a lot more limited than in the US. Pirate Bay was
probably indirectly liable in the US. Does it make a difference whether you use
direct and indirect liability from a practical perspective?
[sorry, had to run out]
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