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41 Ariz. St. L.J. 1033 (2009)
An Empirical and Consumer Psychology Analysis of Trademark Distinctiveness

handle is hein.journals/arzjl41 and id is 1045 raw text is: AN EMPIRICAL AND CONSUMER PSYCHOLOGY ANALYSIS OF TRADEMARK DISTINCTIVENESS Thomas R. Lee, Eric D. DeRosia, & Glenn L. Christensent ABSTRACT This article analyzes the taxonomy of trademark distinctiveness that has long been endorsed in the courts and scholarly commentary. This distinctiveness scale is routinely justified on the basis of an assumption about consumer psychology: that consumers perceive suggestive, arbitrary, or fanciful marks as source-indicating, but see descriptive marks as merely descriptive. Although this core premise of trademark law is a fundamental matter of consumer psychology, it has never been subjected to scrutiny under the light of consumer psychology theory and empirical analysis. We offer a consumer psychology model for questioning the law of distinctiveness (or source indication) and then test our theory in a series of empirical studies. Building on perceptual schema theory, we suggest that the non-lexical signs in a trademark may overwhelm the linguistic signs credited by the law. If a descriptive word mark is presented in a spatial placement, size, and style that matches the consumer's schematic mental model of what product labels and brand names look like, the word may be perceived as a source indicator even if its semantic meaning may be merely descriptive. Our three empirical studies confirm this hypothesis. Study I shows that there is no statistically significant difference in source-indicating distinctiveness across the spectrum of descriptive, suggestive, arbitrary, and fanciful word marks when presented in an average trademark use context on a box of t Thomas R. Lee, Rex & Maureen Rawlinson Professor of Law, Brigham Young University; Eric D. DeRosia, Assistant Professor, Marriott School of Management, Brigham Young University; Glenn L. Christensen, Garrett Research Fellow and Associate Professor, Marriott School of Management, Brigham Young University. An earlier draft of this article was presented in a plenary session of the Ninth Annual Intellectual Property Scholars Conference. The authors gratefully acknowledge the insightful comments they received from conference participants. Thanks also to Mike Allen, Stacey Dogan, Graeme Dinwoodie, Mark Janis, Mark Lemley, Lance Long, Mark McKenna, Gordon Smith, Rebecca Tushnet, and Lou Virelli for their comments on earlier drafts, and to Joseph Benson, Eric Clarke, Nick Jepsen, Greg Jolley, Alan Lemon, Stephen Mouritsen, Blake Tierney, and Keith Woffinden for their research assistance. The empirical studies in this article were possible due to the generous support of research grants from the Marriott School of Management and J. Reuben Clark Law School at Brigham Young University.

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