Thomas R. Lee, Glenn L. Christensen, and Eric D. DeRosia (2008), “Trademarks, Consumer Psychology, and the Sophisticated Consumer,” Emory Law Journal, 57 (3), 575-650.
ARTICLE:
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ABSTRACT:
Trademark law rests on an amorphous foundation. The scope of protection afforded to the trademark holder turns on the psychology and behavior of the “ordinary” consumer “under the normally prevalent conditions of the market and giving the attention such purchasers usually give in buying that class of goods.” In trademark law, “everything hinges upon whether there is a likelihood of confusion in the mind of an appreciable number of ‘reasonably prudent’ buyers.” Where the ordinary consumer is deemed sufficiently “sophisticated” to discern differences between two competing marks, the law forecloses protection for the senior trademark.
Although the ordinary consumer’s mindset is central to trademark law and policy, neither courts nor commentators have made any serious attempt to develop a framework for understanding the conditions that may affect the attention that can be expected to be given to a particular purchase. Some of the classic judicial descriptions of the ordinary consumer cast her as “ignorant … unthinking and … credulous,” or “hasty, heedless and easily deceived.” In other cases, the courts have bristled at the “claimed asininity” of the buying public, suggesting instead that the average buyer is “neither savant nor dolt,” but is one who “lacks special competency with reference to the matter at hand but has and exercises a normal measure of the layman’s common sense and judgment.” For the most part, however, the debate is a vacuous war of words, uninformed by any careful theoretical modeling of consumer psychology or empirical study of consumer behavior.
The academic literature is marked by a similarly empty rift. On one hand, so-called “apologist” trademark commentary paints a picture of the consumer as the “fool”—one highly susceptible to even the slightest suggestion of a connection between two trademarks. So-called “restrictionist” commentary quarrels with the “conception of a consumerate of ‘presumptive idiots’ who are ‘apparently befuddled by nearly everything.’” Scholars on the restrictionist side of the divide see the consumer as an informed “sovereign” who is “actually habituated to ambiguity,” such that “the degree of confusion [she is] actually likely to suffer is less than might otherwise be thought.”
This fundamental disagreement is at the heart of a core theoretical divide in the trademark commentary. As Barton Beebe has noted, “The commentator proceeds from an initial assumption about the degree to which consumers act or are acted upon, about the degree to which they are creative subjects or the created objects of the trademark system . . . . The apologist commentator traditionally assumes that consumers act, the restrictionist, that consumers are acted upon. From these premises follow calls for more or less or at least different kinds of paternalism.”
Although scholars offer strikingly different portrayals of the reasonably prudent purchaser, neither camp has attempted a comprehensive examination of the theoretical or empirical bases for their positions. Even Beebe, who makes a significant contribution in identifying some internal conflicts in each side’s positions, openly declines to “take sides in this debate,” while acknowledging that “trademark law lacks a well-developed theory of the consumer, and, specifically, of consumer sophistication.”
This Article attempts to fill that void. We take seriously the oft-repeated—but seldom heeded—view that the fields of “cognitive and consumer psychology” have “much to offer those interested in trademark law.” Borrowing from scholarly literature in marketing and consumer psychology, we develop an extensive model of consumer sophistication. In the sections below, we first present a general summary of the relevant case law, and then introduce the consumer behavior model that will serve as the core of our analysis. The model identifies two general antecedents to the exercise of consumer care (or “cognition,” as it is phrased in the literature) by a sophisticated consumer: a sufficient level of “motivation” for care and an adequate “ability” to be careful.
After developing the motivation and ability elements in some detail, we employ the model to analyze a strand of case law that is at the heart of the broader debate about the consumer mindset—cases that identify circumstances where the consumer is expected to be more, or less, “sophisticated.” The informed, rigorous view of the consumer that emerges is much more nuanced and complex than that of either fool or sovereign. We offer a positive framework for understanding the basic strands of the judicial conceptions of consumer sophistication and interject normative criticism in cases where we find fault with the jurisprudence. Lastly, we employ the model to take a broader look at the relevance (and relative significance) of consumer sophistication in trademark infringement cases.
Our methodology offers insights that can inform—and transform—a broad range of issues in a body of law that can no longer afford to ignore the field of consumer psychology. By moving beyond stereotypes and rhetorical flourishes about the validity vel non of the portrayal of the consumer as the “presumptive idiot,” our model opens analytical doors that account for the realities of consumer behavior and help to resolve many of the conflicts and inconsistencies in trademark law.
– Eric DeRosia