One of the primary rationales for trademark law is that it provides a mechanism for producers of a good or service to communicate with consumers about the source of their products. As Professor Linford explained, laws should be protective of trademarks enough to reduce consumer search costs, but not so protective as to limit competition. Professor Linford argued that if trademark law is to develop consistent with these principles, lawyers need to reconsider the current contours of trademark law.
One way to re-contour trademark law, Professor Linford offered, is to reconsider our understanding of the Abercrombie spectrum. The Abercrombie spectrum, named after the famous case in which it was developed, is used to determine the inherent strength of a word mark. The spectrum ranges from generic terms to fanciful marks, with fanciful marks receiving the greatest protection and generic terms receiving no protection at all. The principal idea behind granting fanciful marks strong protection is that fanciful marks have no inherent connection to the product (e.g. Apple computers), compared with generic terms (e.g. computers), and thus consumers will readily identify a specific product with a specific company. If a word mark is deemed fanciful, courts presume that it is entitled to a high level of protection. However, Professor Linford explained that many fanciful marks are not truly fanciful and could theoretically be granted less protection.
Drawing upon the theory of sound symbolism, Professor Linford chipped away at the underlying logic of granting fanciful marks strong protection. Sound symbolism is the linguistic theory that sounds convey specific meanings. For example, s/f/z sounds convey that something is faster than things described by p/k/b sounds. “If different sounds convey different meanings, the idea of a word mark as totally fanciful loses its strength,” Professor Linford explained. So how can we bring the Abercrombie spectrum’s protection of fanciful marks into agreement with linguistic science? Professor Linford’s first suggestion is that courts should stop presuming that parties using a similar mark are doing so in bad faith. Courts should also consider the use of sound symbolism in determining the strength of a mark and infringement. Andrea Mallarino, a 1L, agreed. “We have all this science now so why not apply it to the law?” she asked.
Professor Linford also argued that there is a linguistic justification for granting trademark rights to traditionally “generic” terms. One obvious reason for granting trademark rights to generic terms: we already have. For example, the word “Kiss” used to be a generic term for any candy; however, after 100 years of use by Hershey, consumers now identify the word “Kiss” as “Hershey’s Kiss.” A similar progression happened with the word “Hog” (a large motorcycle) for Harley Davidson and “Windows” (a computer interface) for Microsoft. These semantic shifts, or a change in language, are relatively common. However, trademark law, and specifically the Abercrombie spectrum, ignores this reality. The main policy reason behind not granting rights over generic terms is that no one person or company should have rights over a commonly understood term. This, however, assumes that a generic term will always be possess that common meaning, which we know is not the case. The solution is relatively simple. Rather than flatly denying trademark rights over a traditionally “generic” term, courts could consider whether consumers view the term as a source identifier for the company.
Professor Linford also talked about a project that he's currently working on: the performance-enhancing placebo effect of marks. Trademark scholars often disagree about what trademarks can do. As one example, it is widely recognized that trademarks provide information to consumers about the source of the good or service. But can that source-identification function also deceive or manipulate the consumer in subconscious ways? Professor Linford used a study on the performance-enhancing placebo effect of trademarks to illustrate this concept. The participants in the study were given two identical golf clubs, except one golf club had the Nike symbol on it, and the other had an “off-brand” symbol. The participants given the “Nike” golf club performed measurably better than the other participants. This performance-enhancing effect, Professor Linford explained, stemmed from Nike’s strong reputation as a performance brand. While the power of the mark is arguably manipulating consumers into thinking they will perform better this is not always a bad thing. Professor Linford suggested that there may be a way to distinguish between harmful manipulation and beneficial manipulation.
Sam Crocker, also a 1L, found the event interesting and appreciated Professor Linford’s fun approach to the subject. “Sometimes a speaker’s expertise can be intimidating,” Crocker observed, “but Professor Linford, while clearly an expert, was excited about the material in a way that made me excited too.”
Amanda Marincic -- May 10, 2017