Reading list: dilution fails an empirical test

Christo Boshoff , The lady doth protest too much: a
neurophysiological perspective on brand tarnishment, 25 J. Product & Brand
Management (2016):
 
[C]onsumers’ emotional responses to
a series of brand tarnishment advertisements are investigated in this study.
The purpose is to assess whether attempts to harm a trademark by tarnishment
lead to negative emotional responses and eventual economic harm, as suggested
by many plaintiffs in trademark dilution legal disputes….
 
Twelve brands were investigated
[using EEG and EMG]. The brands were selected because they were ‘well-known’
but not overly famous brands…. Participating subjects were exposed to a static,
on-screen print advertisement of the senior brand (untarnished) and of the
tarnished brand [tarnished using humor]…
 
In the case of exposure to the
tarnished brands, all but two (the clothing retailer Cropp Village (EEG = 0.394;
p < 0.05) and Sony Ericsson (0.4067; p < 0.05) of the EEG responses were
neutral. However, contrary to expectations, these responses were also positive.
This result implies that these three [two?] brands will most probably not be
harmed if the ‘tarnishment’ consists of social commentary. It could also
suggest that consumers can differentiate between different forms of
tarnishment, and that tarnishment involving social commentary is not frowned
upon. This may be because the consumer agrees with the social commentary, or
finds it amusing.
 
… Based on the results of this
study, it appears as if the tarnishment of relatively strong brands does not
elicit much emotional response among consumers. Most neurophysiological
responses to the brand tarnishment were neither negative nor positive.
 
This conclusion about neutral
emotional responses holds, regardless of the temporal order of the exposure. In
other words, regardless of whether the respondents were exposed to the
tarnished brand first or to the untarnished brand first, the emotional responses
were the same. The conclusion also holds for different product categories. In
other words, the same empirical results emerged, irrespective of whether respondents
were exposed to ‘rational/thinking’ brands or ‘emotional/feeling’ brands. These
results seem to provide some support for the view that well-known trademarks/brands
are practically immune to dilution. But it also shows that tarnishment cases
should each be considered on their own merit….
 
The primary contribution of this
study is that, for the first time, some light is shed on consumers’ emotional
responses to brand tarnishment. Regardless of the neurophysiological measure
used, the results demonstrate that the responses to brand tarnishment are
generally neutral. The results thus do not suggest a strong likelihood of
severe economic harm due to negative emotional responses to brand tarnishment among
consumers.
 
On the title, see Christine Haight Farley, The Feminine
Mystique of the Brand in Trademark Law Today
.

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