Private Law Theory

Jake Linford, Justin Sevier and Allyson Willis, ‘Trademark Tarnishmyths’ (6 August 2022), available at SSRN. Federal trademark law now protects certain marks against ‘tarnishment’. If a mark is associated with ‘bad’ things such as drugs or sex, the theory goes, that may harm the seller’s reputation and dilute the mark’s ‘commercial magnetism’. The theory sounds plausible enough, in theory. But what if that is not how it works in practice? In ‘Trademark Tarnishmyths’, Linford, Sevier, and Willis add to the growing literature that empirically tests this theory of trademark tarnishment. The authors conducted two experiments in which famous marks were associated with sex, drugs, or sacrilege. The authors assert that theirs is ‘the first test of whether drug-related and sacrilegious uses tarnish appropriated marks, in two separate studies’ (p 9) … (more)

[Sarah Burstein, JOTWELL, 23 February 2023]