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83 Trademark Rep. 149 (1993)
How and When Do Trademarks Dilute: A Behavioral Framework to Judge Likelihood of Dilution

handle is hein.journals/thetmr83 and id is 169 raw text is: Vol. 83 TMR HOW AND WHEN DO TRADEMARKS DILUTE: A BEHAVIORAL FRAMEWORK TO JUDGE LIKELIHOOD OF DILUTION By Alexander F. Simonson* I. INTRODUCTION Trademark dilution is a psychological phenomenon causing legally cognizable economic damages. The typical statutory standard for a dilution cause of action mandates showing a likelihood of dilution of the distinctive quality of the mark or of injury to business reputation,' thus often requiring a plaintiff to engage in fortune telling. Yet, reasonable prediction may be possible because the likelihood standard suggests an empirical and cognitive orientation. In fact, often-invoked descriptions of dilution, such as blurring the distinctiveness of the brand,2 whittling away of the identity and hold upon the public mind of the mark,3 adversely affecting the value of the mark, and diminishing or destroying the distinguishing quality of the mark,5 allude to cognitive processes of consumers as they react to particular branding strategies. One can properly assess the likelihood of dilution in this behavioral context. It is the premise of this article that as surveys have become the empirical fodder for trademark-confusion litigation, so too empirical realities must eventually take root in dilution juris- prudence. As judges become more empirically demanding, predictions of reality will be guided less by intuition and more by real evidence and arguments based on firm behavioral underpin- nings. The future of dilution analysis rests, therefore, with understanding and predicting these behavioral patterns so that one can properly assess the probability or likelihood of dilution. * Member of the New York Bar and Ph.D. candidate, Columbia University Graduate School of Business. A.B. magna cum laude, Columbia University, 1984; J.D., New York University, 1987; member of the Association for Consumer Research, the American Marketing Association, and the American Bar Association, Section of Patent, Trademark and Copyright Law. The author wishes to thank Sidney Lirtzman of the TMR Editorial Board for his suggestions and editorial guidance. 1. See, eg, NY Gen Bus Law §368-d (McKinney 1992). 2. Sally Gee, Inc v. Myra Hogan, Inc., 699 F2d 621, 217 USPQ 658 (CA 2 1983). 3. Frank I. Schechter, The Rational Basis of Trademark Protection, 40 Harvard University Law Review 813, 22 TM Bull 139 (1927), reprinted in 60 TMR 334 (1970). 4. 3A Rudolf Callmann, Unfair Competition, Trademarks and Monopolies §21.11 (L. Altman 4th ed 1983). 5. Beverly W. Pattishall, Dawning Acceptance of the Dilution Rationale for Trademark-Trade Identity, 74 TMR 289 (1984). 149

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