Reading list: Matthew B. Kugler, Measuring
Sponsorship Materiality.  Abstract:

 

The problem of sponsorship
confusion is one of the most vexing in trademark law. Mark owners often claim
that the use of their marks in movies or on merchandise will lead consumers to
believe that their companies have approved these other products. They claim
that they therefore must be able to control these uses, lest consumers be
misled. Many scholars believe that mark owners have been too ambitious in these
claims, chilling valuable speech and unnecessarily preventing competition. In
an effort to rein in overzealous trademark owners, several scholars have
proposed adding a materiality requirement to the sponsorship confusion
analysis. They want to require mark owners to show not only that consumers
assume a particular product is sponsored by the mark holder, but also that this
assumption materially affects consumer behavior. This paper presents an empirical
survey that uses a variety of sponsorship materiality measures to determine how
such a materiality requirement would affect the shape of trademark law in the
merchandising context. The data show that requiring materiality would alter the
treatment of several classes of products, but would not have nearly as broad an
effect as many would have expected. The implications of these findings for
other proposed limiting doctrines are discussed.