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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
Thomas R. Lee, Eric D. DeRosia, & Glenn L. Christensent
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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