About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

57 Emory L.J. 575 (2007-2008)
Trademarks, Consumer Psychology, and the Sophisticated Consumer

handle is hein.journals/emlj57 and id is 589 raw text is: TRADEMARKS, CONSUMER PSYCHOLOGY, AND THE SOPHISTICATED CONSUMER Thomas R. Lee* Glenn L. Christensen** Eric D. DeRosia*** Trademark law rests on an amorphous foundation. The scope of protection afforded to the trademark holder turns on the psychology and behavior of the ordinary consumer under the normally prevalent conditions of the market and giving the attention such purchasers usually give in buying that class of goods.' In trademark law, everything hinges upon whether there is a likelihood of confusion in the mind of an appreciable number of 'reasonably prudent' buyers.2 Where the ordinary consumer is deemed sufficiently sophisticated to discern differences between two competing marks, the law forecloses protection for the senior trademark.3 Although the ordinary consumer's mindset is central to trademark law and policy, neither courts nor commentators have made any serious attempt to develop a framework for understanding the conditions that may affect the attention that can be expected to be given to a particular purchase. Some of the classic judicial descriptions cast the ordinary consumer as ignorant . . . unthinking and ... credulous'4 or hasty, heedless and easily deceived.'5 In other cases, the courts have bristled at the claimed asininity of the buying public,6 suggesting instead that the average buyer is neither savant nor dolt, Professor of Law, Brigham Young University. ' Assistant Professor, Marriott School of Management, Brigham Young University. Assistant Professor, Marriott School of Management, Brigham Young University. Thanks to Gregory Phillips, Scott Ryther, Rebecca Tushnet, Barton Beebe, Graeme Dinwoodie, Mark Lemley, Craig Dallon, James Rasband, and Brett Scharffs for their comments on an earlier draft, and to Kelley Marsden, Joseph Benson, and Scott Cowley for their research assistance. The authors also gratefully acknowledge the generous support of research grants from the Marriott School of Business at Brigham Young University. SW.W.W. Pharmaceutical Co. v. Gillette Co., 984 F.2d 567, 575 (2d Cir. 1993). 2 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:91 (4th ed. 2007). 3 id. 4 Florence Mfg. Co. v. J.C. Dowd & Co., 178 F. 73, 75 (2d Cir. 1910). 5 Stix Prods., Inc. v. United Merchs. & Mfrs., Inc., 295 F. Supp. 479, 494 (S.D.N.Y. 1968). 6 Pocket Books, Inc. v. Dell Publ'g Co., 268 N.Y.S.2d 46,47 (Sup. Ct. 1966).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most