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109 Trademark Rep. 955 (2019)
The Science of Proving Trademark Dilution

handle is hein.journals/thetmr109 and id is 996 raw text is: Vol. 109 TMR COMMENTARY THE SCIENCE OF PROVING TRADEMARK DILUTION* By Barton Beebe,** Roy Germano,*** Christopher Jon Sprigman,*... and Joel H. Steckel***** I. INTRODUCTION In this short commentary, we discuss our recent empirical scholarship on the vexing question of how to prove claims that a trademark has been diluted by blurring.1 We first discuss the current confusion in the federal courts over what qualifies as proof of dilution. We then report the results of two experiments that test different ways that plaintiffs may seek to prove these claims. Our bottom line is clear: the test that has been employed by most federal courts-what we refer to here as the mere association test-is an invalid measure of trademark dilution. The important question, which we take up later in this commentary, is how to improve upon that failed approach. We offer a new association strength test that can be used to prove-or, to disprove-dilution by blurring. This test offers a valid construct for measuring trademark dilution. Those who are interested in the full details of our research should consult the longer article, Testing for Trademark Dilution in Court and the Lab, from which this commentary is drawn.2 This commentary is based on an article published by the authors in the University of Chicago Law Review. Barton Beebe, Roy Germano, Christopher Jon Sprigman & Joel H. Steckel, Testing for Trademark Dilution in Court and the Lab, 86 U. Chi. L. Rev. 611 (2019), available at https://lawreview.uchicago.edu/publication/testing-trademark- dilution-court-and-lab. 0 2019 Barton Beebe, Roy Germano, Christopher Jon Sprigman & Joel H. Steckel. John M. Desmarais Professor of Intellectual Property Law, New York University School of Law. ... Senior Research Scholar, New York University School of Law. .... Professor of Law, New York University School of Law. ..... Professor of Marketing and Vice Dean for Doctoral Education, New York University Stern School of Business. See Barton Beebe, Roy Germano, Christopher Jon Sprigman & Joel H. Steckel, Testing for Trademark Dilution in Court and the Lab, 86 U. Chi. L. Rev. 611 (2019), available at https://lawreview.uchicago.edu/publication/testing-trademark-dilution-court-and-lab. 2 Id. 955

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