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What do consumers think about descriptive terms?

By Rebecca Tushnet

Empirical work in trademark is sadly limited. Here?s a really provocative piece that uses consumer perception studies to argue that Abercrombie is just as bad at assessing the actual distinctiveness of word marks as Wal-Mart thought it was for trade dress.

Thomas R. Lee, Abercrombie Unveiled: A Theoretical and Empirical Analysis of Trademark Distinctiveness

Abstract:

The word mark taxonomy established in Abercrombie is a longstanding tenet of doctrinal orthodoxy. Lawmakers have so oft restated the Abercrombie classes and so consistently rehearsed the theoretical grounds that undergird them that it no longer occurs to us to question their premises. But there are good reasons-both pragmatic and theoretical ones-to question the Abercrombie system.

?. Our empirical studies show that Abercrombie rests on an erroneous assumption about the predominant impact of semantic word meaning. So long as the word is used in an "average" trademark use context, a word mark's semantic meaning is shown to be overshadowed by the non-linguistic, contextual markers that establish its distinctiveness as a source indicator.

Full post as published by 43(B)log on January 23, 2009 (boomark / email).