Jeanne Fromer (with Beebe and Stein), An Empirical Picture of Trademark Law
We are running out of competitively effective word marks.
What about images? Word marks dominate consistently over time, but numbers have
increased in every category. Our definitions: images include image only,
text+image, and stylized word marks. Live image marks over time keeps
increasing, with a lot of text+image and a growing number of others.
Inadequacy of TM law: visual depletion and congestion;
difficulty handling visual similarity in confusion analysis; difficulty
handling visual distinctiveness in the sense of source identification.
Empirical questions: are we running out of visual marks?
What are changes over time in classes? Applicant behavior?
2003-2023: image only, 200K office actions, image+text, 500K
office actions. 79.1% of case files contain images.
Design search codes: 3 level taxonomy of 29 top level
categories such as human beings, foodstuff, supernatural and other beings, and
furniture; 157 second level categories, such as trees/bushes, cutlery, and
bells; 1400 third-level categories, such as Dutch women. Shades of “those
belonging to the Emperor.” All sorts of weird racial categories. (I wonder
if this will be purged by the new administration.) Design search codes can be
added by the PTO or suggested to be added/changed by applicants. Need to find
more about the process, which seems quite informal.
In class 25, apparel, for all 2023 live marks, only 50 of the
1400 noncolor design search code categories are not claimed (e.g., Scotch
women). Geometric figures & solids is pretty crowded, same with animals. 32
marks with images of a dove in class 25. When a word is taken, it’s taken; are
these all different doves capable of coexistence? Also, image+text with image
of dove is 74, and 16 word only marks.
Visual complexity: is number of design search codes per mark
increasing over time? Is resort to geometric marks increasing or decreasing?
Can we measure complexity with an AI model?
Likely confusion: McCarthy says there’s little in the way of
guidelines to determine degree of visual similarity that causes LOC; no point
in launching into long analysis, only thing to say is I know it when I see it;
court case agrees.
Increasing 2(d) refusals over time—but that seems possibly
to be based on text, not on the images, b/c examiners have difficulty finding
similar images based on tools they have (her hypothesis)
Distinctiveness: Abercrombie for word marks, Seabrook for
non-word marks. 2d Circuit continues to try to shove non-word marks into
Abercrombie, but most other circuits use Seabrook. Abercrombie focuses on
distinctiveness of source. Seabrook looks at distinctiveness from other
marks or ornamentation—differential distinctiveness. Suggestion: we should look
for both! Consider things that are generic/descriptive for the classes for
which they have design codes (e.g., a carpet design code for carpets).
Jake Linford: Thinks of both Abercrombie and Seabrook as
asking the same question of sending the consumer a signal of branding.
A: that may be a proxy, but they aren’t necessarily the same
thing. Flowers have nothing semantically to do with apparel, but are used in
fashion.
Deborah Gerhardt: it can do both, like red for strawberry
flavor.
A: yes, absolutely. Just reads Seabrook differently.
Felix Wu: psychology literature on images and how much
distance between images we should require—can that tell us anything?
RT: holistic v. sequential perception of images v. words.
Rachael Dixon: People do try to game the system all the time—claiming
a cannabis leaf was a maple leaf, for example. There are no design codes for
poop emojis.
Sari Mazzuco: There might be a lot of space for congestion
if there’s a lot of thin protection, like a thinly protected stylized “O.”
A: yes, that might be a difference from words, like a bunch
of text+image marks with a name + image of a rug for rugs. (I wonder if the rug
image should then be disclaimed.)
Grynberg, The Paranoid Brand in American Politics
Misinformation and trust. Can marketing tell us anything
useful? Not interested in specific sources like NYT, but in mindsets. Institutional
trust v. cynicism. Faith in liberal institutional structures with self-correction
mechanisms v. cynicism about information as power.
Marketing framework: How Brands Grow, influential book
w/contested theses—brands grow by improving their mental and physical
availability—does the brand come to mind when purchase is possible?
Distinctivess in their model matters more than differentiation. True
differentiation is hard absent IP which can create faux differentiation;
consumers don’t care nearly as much about brands as marketers do. Thus
distinctive brand assets, like brand names, logos, jingles etc. around which
memory structures may form, are more important than actual product features. Important:
category entry points—moment that product category is relevant, opportunity for
brand to come to mind—marketer can target these entry points. E.g., people
might eat candy when taking a break from work. Kit Kat marketing is built
around “take a break.”
Any worthwhile application to information problems? Ideas as
brands: “Government can’t do anything right.” What views are mentally available
if there’s a line at the DMV?
Branding trust v. cynicism: “trust the science” v. “do your
own research”
If differentiation isn’t so important: Both can fill the need
of explaining the moment, framing read of a news source, providing a course of
action, entertaining, etc. We “shop” from both mindsets. Institutions often act
in a non-trustworthy way, meaning the paranoid view is sometimes correct.
Structural advantages for cynical brand: building reach is
cheap: flooding the zone with shit; ease of tailoring to audience, emotion/outrage;
ease of tailoring to whatever is happening; institutional supports. Decline of
reported journalism and expense of real journalism. Suitability for short,
high-volume consumption like social networks. Decline of gatekeepers.
What can the trust brand do? Targeting entertainment, education/civics,
smoothing contacts with government like pre-filling tax forms as an
anti-disinformation measure; understanding the need for volume/reach. Problem:
Nuance complicates mental availability.
Does this perspective yield anything that is interesting or
distinct from what’s in the ether?
Branding and the anti-democratic moment? Democratic systems
are open to multiple sources of information and strong self-correction
mechanisms. Populist view is that everything is about power. Closed systems are
dictatorial. Populist branding activities are also organizing/control
activities in an attention economy.
Q: maybe trust/cynicism isn’t the right dichotomy. Positive
v. negative claims—reliability v. they’re bad is also in the marketing
literature. Where is the position of rational ignorance for a consumer? Maybe
now we start in a position of distrust and people look for reasons for trust,
which is why Trump has fewer problems than Dukakis.
Dickson, X Doesn't Mark the Spot: When Name Changes Fail
89% of marketing emails in July 2024 still called it
Twitter. Some of the most visited English language news sites in the world
still use Twitter in their reporting. Other rejected name changes: The Willis
Tower is still the Sears Tower; the Mario Cuomo Bridge is still the Tappan Zee;
the Ronald Reagan National Airport is still National. Stadium name change
rejections are also common. People are still mad about Macy’s buying Marshall
Field’s and changing the name to Macy’s in 2006—protests continued to 2012 and
beyond.
Why do companies change names? (1) bankruptcy/going out of
business; (2) mark super racist; (3) merged/bought out; (4) poisoned/killed
people; (5) terrorist group is using name of our company like mobile payment system
ISIS.
Why resist? Neuroscience: stickiness, anchoring bias;
nostalgia; local pride, fears of encroaching outside forces; sense of
community; disapproval of person or entity related to name change.
Could companies actually retain rights to marks they haven’t
been using in years based on consumers’ continuing use of these names? Public
use doctrine for nicknames like Coke might help them, as in Coca-Cola v. Koke,
even though Coca-Cola discouraged used of the name at the time due to cocaine connotations.
Bud for Budweiser, VW Beetle got rights in Bug. Yankees got to stop “Baseball’s
Evil Empire.” Even public use of VDS to refer to VCDS.
Can the public use doctrine overcome abandonment? Even when
companies have actively discouraged use?
Many companies that have rebranded have managed to keep
their registrations alive for years after abandonment with really sketchy/bad
specimens: Twitter’s renewed in 2024; Washington football team renewed its old
name with a specimen article about its past use. Marshall Field’s renewed with a
picture of a sign on a building that didn’t even match the claimed mark; so too
with National Airport.
Q: another reason/explanation: resentment of participating
in someone else’s marketing campaign—especially if the stadium name changes
every 3 years. (Also defends renewal of Washington team mark to prevent other
people selling merchandise.)
RT: This set of examples is a really good illustration of Jessica
Litman’s insight that we participated in creating value of TMs too. Indianapolis
Colts case would say that when there’s no continuity b/t old and new marks,
there’s no interest for the new owner to assert—today, I think we would
consider that also in the register of Article III standing.
Linford: thinks that courts would find standing based on the
idea that consumers would punish the old owner b/c the connection remains.
Irene Calboli: it’s different with X because reporters say
(formerly Twitter) and that’s different from having people still carrying around
Chanel bags in Russia even though Chanel no longer sells in Russia—those are
different kinds of contexts that have to be recognized.
Q: contrast: what are the characteristics of name changes
that do stick? How long do the changes take to stick?
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