Gone in Sixty Milliseconds: Trademark Law and Cognitive Science

Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that "Kodak soap" was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark. Trademark owners think dilution is harmful but have had difficulty explaining why. Many courts have therefore been reluctant to enforce dilution laws, even while legislatures have enacted more of them over the past half century. Courts and commentators have now begun to use psychological theories, drawing on associationist models of cognition, to explain how a trademark can be harmed by the existence of similar marks even when consumers can readily distinguish the marks from one another and thus are not confused. Though the cognitive theory of dilution is internally consistent and appeals to the authority of science, it does not rest on sufficient empirical evidence to justify its adoption. Moreover, the harms it identifies do not generally come from commercial competitors but from free speech about trademarked products. As a result, even a limited dilution law should be held unconstitutional under current First Amendment commercial-speech doctrine. In the absence of constitutional invalidation, the cognitive explanation of dilution is likely to change the law for the worse. Rather than working like fingerprint evidence-which ideally produces more evidence about already-defined crimes-psychological explanations of dilution are more like economic theories in antitrust, which changed the definition of actionable restraints of trade. Given the empirical and normative flaws in the cognitive theory, using it to fill dilution's theoretical vacuum would be a mistake. I. Introduction Law attempts to shape human behavior and therefore can benefit from behavioral science. Psychology and economics can clarify legal concepts like intent and damages, and can predict the consequences of various regulatory regimes, guiding lawmakers as they seek specific goals. But jurists and legislators must be aware of the limits of science. Laboratory results may not reflect real-world experience. And even the most thorough model of behavior cannot tell us what laws are just. Cognitive science is especially attractive to trademark law because trademark protection is premised on a psychological assumption: exposure to a mark will trigger ideas and emotions in the mind of a consumer. Traditionally, trademark law has measured these responses through circumstantial evidence and consumer-response surveys, but in recent years, research advances have promised to replace intuitions, whether courts' or consumers', with hard facts. Neuromarketing, the investigation of marketing and branding techniques through observation of brain activity rather than consumer selfreports, is the most recent contender in the search for greater understanding of consumer behavior. Among other things, it illuminates the common wisdom that first impressions are cmcial. Researchers can now establish that it only takes fifty milliseconds-a twentieth of a second-for consumers to form opinions about Web sites.1 Once such an opinion is formed, cognitive biases make it easier for consumers to keep believing than to change their minds.2 Neuromarketing also appeals to the idea that there is an objective truth behind intangible brand values.3 It's well known that people like Pepsi better than Coke until they know what it is they're drinking, at which point preferences shift to Coke. Part of what people are drinking is the trademark. Magnetic resonance imaging (MRI) shows that different areas in the brain light up in blinded versus nonblinded taste tests.4 Positive associations with the brand change the experience of tasting soda, evoking memories along with immediate sensory impressions.5 Neuroscience thus promises to explain why we buy and to give advertisers information about consumers' brains that consumers themselves don't know. …