The law generally ignores the role of emotions in consumer decision making,although emotions are widely acknowledged to play a dominant role in shaping preferences concerning risk, borrowing, consumption and choice.5 Trademark law has been especially suspicious of the role that emotion plays in increasing demand for branded goods. Some have argued that emotional advertising causes consumers irrationally to pay a premium for trademarked products that are not functionally superior to generic substitutes. Accordingly, what one thinks about the emotional influence of popular brands tends to dictate one's views about the proper scope of trademark protection.
This Article argues that trademark law can benefit from an updated understanding of the influence of emotion on consumer decision-making. Psychological research in this area is relatively new. 9 Yet it already reveals a number of insights that can be useful for trademark theory. Specifically, research on emotion and choice can shed light on one of trademark law's most elusive and controversial doctrines: trademark dilution. Modem consumer emotion research provides a sturdier justification for dilution protection than economic or cognitive science doctrines standing alone. This is because trademark fame, or familiarity, signals information about risk and quality to consumers through quick and efficient innate emotional response mechanisms. However, while reliance on fame lowers effort or "search costs" for buyers, it doesn't do much to promote trademark
law's other stated aim: the efficient exchange of information about consumer preferences concerning specific product features, functions, or quality. Instead, overly strict protection of mark familiarity through the law of trademark dilution can burden competitors who signal product quality and reliability using communication strategies besides fame. Therefore, this Article argues in favor of a very narrow dilution regime that will conserve the signaling value of mark fame for consumers but avoid unduly burdening competitor efforts to communicate product value through other means.
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