Measuring Trademark Dilution by Tarnishment

The law of trademark tarnishment—a type of trademark dilution—is in disarray. The basic definition is deceptively simple. Trademark tarnishment occurs when a junior mark harms the reputation of a substantially similar existing senior trademark by associating itself with something perverse or deviant. However, it turns out that Congress and the courts disagree over the prima facie evidence necessary to prove its existence. The problem is that federal law and related legal principles are simply ill-equipped to adequately analyze this unique market-driven doctrine. To make matters worse, legal scholars cannot even agree on whether trademark tarnishment can empirically exist in the marketplace. Part of the issue is that there has never been any real attempt to define the phrase “harm to reputation” in the trademark context. Drawing on marketing scholarship and social science methods, this Article provides the first workable framework that courts can use to hear and accurately analyze these cases. It relies on experimental survey methodology to empirically show that tarnishment can exist under certain conditions; the key is increasing the number of exposures to the harmful mark. The Article also introduces extant branding theory as a way to define harm to reputation in the marketplace. This interdisciplinary approach ultimately gives courts a mechanism by which to measure harm to reputation and the tangible impact of tarnishment. In the process, this theory provides litigants with an empirical-based strategy to prove their dilution claims and contributes to the doctrinal justification for trademark dilution laws

The Shadows of Litigation Finance

Litigation finance is quickly becoming a centerpiece of our legal system. Once a dispute arises, litigants may seek money from third-party financiers to pay their legal bills or monetize their claims, and in turn those financiers receive a portion of any case proceeds. Yet policymakers are struggling with how to evaluate and regulate litigation finance. There are two problems. The first is an awareness problem. Some commentators consider litigation finance “likely the most important development in civil justice of our time,” but others have hardly heard of it. As a result, many policymakers do not quite understand what litigation finance is, how it works, and what is actually new about it. The second problem is analytical. There is no scholarly framework policymakers can rely on to evaluate whether litigation finance is actually good for the legal system and society. Moreover, the existing scholarship has overlooked important welfare effects, risking inefficient and suboptimal regulatory decisionmaking. This Article addresses both problems. First, it articulates what exactly litigation finance is, who uses it, why they use it, and—most importantly—what is (and is not) new about this form of financing. Second, it provides a novel framework for analyzing the welfare implications of litigation finance. Existing scholarship focuses narrowly on the effects of litigation finance on behavior after a claim accrues and a litigant seeks funding. This Article’s framework provides new insights by explaining how litigation finance also significantly affects parties’ behavior before a legal dispute ever arises. Once these “pre-claim” effects of litigation finance are understood alongside the “post-claim” effects that scholars have previously identified, it becomes clear that policymakers should encourage rather than obstruct litigation finance

Essays in Marketing, Law, and Ethics

This dissertation focuses on employing both empirical and normative methodologies to answer questions at the intersection of marketing, law, and ethics. The first chapter focuses on how federal and state law treats trademark dilution laws. Using traditional branding theory and consumer psychology methods, I argue that federal law is misguided and must be re-formulated. The second chapter seeks to better understand the implications of brands publicly taking political and social stands. In particular, it argues that consumer boycotts in response to these brands serve an important role in the marketplace of ideas and it provides a research agenda for marketers to better understand these so-called consumer boycotts. The third and final chapter seeks to criticize the common marketing practice of catering to consumer preferences. Marketers are often pre-occupied with these preferences and therefore prioritize them even if they create cultural harms. This harm often accrues to those who are not the target demographic of the marketing strategy. As such, paradoxically, marketing should seek to be critical of consumer preferences in some contexts

Essays In Marketing, Law, And Ethics

This dissertation focuses on employing both empirical and normative methodologies to answer questions at the intersection of marketing, law, and ethics. The first chapter focuses on how federal and state law treats trademark dilution laws. Using traditional branding theory and consumer psychology methods, I argue that federal law is misguided and must be re-formulated. The second chapter seeks to better understand the implications of brands publicly taking political and social stands. In particular, it argues that consumer boycotts in response to these brands serve an important role in the marketplace of ideas and it provides a research agenda for marketers to better understand these so-called consumer boycotts. The third and final chapter seeks to criticize the common marketing practice of catering to consumer preferences. Marketers are often pre-occupied with these preferences and therefore prioritize them even if they create cultural harms. This harm often accrues to those who are not the target demographic of the marketing strategy. As such, paradoxically, marketing should seek to be critical of consumer preferences in some contexts

Essays In Marketing, Law, And Ethics

This dissertation focuses on employing both empirical and normative methodologies to answer questions at the intersection of marketing, law, and ethics. The first chapter focuses on how federal and state law treats trademark dilution laws. Using traditional branding theory and consumer psychology methods, I argue that federal law is misguided and must be re-formulated. The second chapter seeks to better understand the implications of brands publicly taking political and social stands. In particular, it argues that consumer boycotts in response to these brands serve an important role in the marketplace of ideas and it provides a research agenda for marketers to better understand these so-called consumer boycotts. The third and final chapter seeks to criticize the common marketing practice of catering to consumer preferences. Marketers are often pre-occupied with these preferences and therefore prioritize them even if they create cultural harms. This harm often accrues to those who are not the target demographic of the marketing strategy. As such, paradoxically, marketing should seek to be critical of consumer preferences in some contexts

Essays in Marketing, Law, and Ethics

This dissertation focuses on employing both empirical and normative methodologies to answer questions at the intersection of marketing, law, and ethics. The first chapter focuses on how federal and state law treats trademark dilution laws. Using traditional branding theory and consumer psychology methods, I argue that federal law is misguided and must be re-formulated. The second chapter seeks to better understand the implications of brands publicly taking political and social stands. In particular, it argues that consumer boycotts in response to these brands serve an important role in the marketplace of ideas and it provides a research agenda for marketers to better understand these so-called consumer boycotts. The third and final chapter seeks to criticize the common marketing practice of catering to consumer preferences. Marketers are often pre-occupied with these preferences and therefore prioritize them even if they create cultural harms. This harm often accrues to those who are not the target demographic of the marketing strategy. As such, paradoxically, marketing should seek to be critical of consumer preferences in some contexts

Fully and Barely Clothed: Case Studies in Gender and Religious Employment Discrimination in the Wake of Citizens United and Hobby Lobby

In 2010, the Supreme Court handed down its decision in Citizens United v. Federal Election Commission. The Court held that for-profit corporations could receive First Amendment protection for political speech. Then, in 2014, the Court held in Burwell v. Hobby Lobby that closely held for-profit corporations could be considered persons under the Religious Freedom Restoration Act. These cases have spurred much scholarship focusing on the treatment of corporations as people and citizens. While supporters argue that these cases are consistent with corporate and First Amendment law, critics argue that the implications of these decisions could be perverse. This article contributes to the critical scholarship by arguing that these two cases might lead to unexplored perverse outcomes. In particular, it argues that corporations may be designated as expressive associations under these newly minted First Amendment protections. If they are expressive associations, then for-profit corporations could discriminate against certain employees who disagree with the corporations\u27 speech. The freedom of association jurisprudence allows expressive organizations to exclude people from membership if those people frustrate the organizations\u27 protected First Amendment activities. Drawing upon this doctrine and using Hooters and Abercrombie & Fitch as case studies, I argue that designating for-profit companies as expressive associations could give these companies a right to exclude certain people from employment because such employees would frustrate corporate speech

Measuring Trademark Dilution by Tarnishment

The law of trademark tarnishment—a type of trademark dilution—is in disarray. The basic definition is deceptively simple. Trademark tarnishment occurs when a junior mark harms the reputation of a substantially similar existing senior trademark by associating itself with something perverse or deviant. However, it turns out that Congress and the courts disagree over the prima facie evidence necessary to prove its existence. The problem is that federal law and related legal principles are simply ill-equipped to adequately analyze this unique market-driven doctrine. To make matters worse, legal scholars cannot even agree on whether trademark tarnishment can empirically exist in the marketplace. Part of the issue is that there has never been any real attempt to define the phrase “harm to reputation” in the trademark context. Drawing on marketing scholarship and social science methods, this Article provides the first workable framework that courts can use to hear and accurately analyze these cases. It relies on experimental survey methodology to empirically show that tarnishment can exist under certain conditions; the key is increasing the number of exposures to the harmful mark. The Article also introduces extant branding theory as a way to define harm to reputation in the marketplace. This interdisciplinary approach ultimately gives courts a mechanism by which to measure harm to reputation and the tangible impact of tarnishment. In the process, this theory provides litigants with an empirical-based strategy to prove their dilution claims and contributes to the doctrinal justification for trademark dilution laws