Stanford Sociology & Psychology of IP, branding

Session 4: The sociology and psychology of brands
Discussion leaders: Jeanne Fromer: A lot of work in this
area. Some is about how consumers react to branding in systematic ways.  Rule of thumb in talking to branding folks:
if you pick a word as a brand, it should be 7 letters or less or 2 syllables or
less.  More systematic research bears this
out in some ways: recognition/recall is better; to the point that consumers
shorten Chevrolet to Chevy and Coca-Cola to Coke.  Unusual spellings can help recall; names that
remind people of other words like Verizon/horizon, Intel/intelligent, Viagra/vigor,
vitality, aggression, Niagara. Arbitrary marks work better when a story can
connect the underlying good/service. There’s no one branding choice thought to
be better than others, but there are costs and benefits.  Low-consonant, low-frequency vowel names for
large cars; high-consonant, high vowel frequency brand name for fast cars.  Sounds: “ah” like “frosh” sounds creamier than
“frish” for ice cream.  American English
doesn’t like “uh”—dull, etc.  Perhaps
that’s why “With a name like Smuckers, it’s gotta be good” is the slogan.  Blackberry connotes speed, reliability,
accessibility, smallness through “b” sound in part. Strawberry connotes similar
features, but not also relaxation as Blackberry does, and connotes slowness
rather than speed. Some of this is culturally specific, but some is not.
Animals make certain noses to connote largeness or smallness.  High-backed vowels like “e” in flea connote smaller/less
power than “ow” or “oo” throughout cultures. 
Choosing words in particular for brands isn’t just choosing an empty
vessel, but already has a lot of meaning associated with it.
Also research well beyond this.  People look at product packaging and that
influences how they think about the product itself. If you put logo higher on
the packaging = more favorable attitude if powerfully known brand, but if not
put it lower.  Aesthetic packages are preferred
over standardized packages. 
Social science literature typically doesn’t relate back to
law; this is mostly marketing w/o thinking about costs of marketing choices
imposed either on consumers or competitors. 
(1) TM law allows propertization, in some sense, of marks that might be
more advantageous than others. Our job is to think about costs/spaces where we
might be allowing propertization despite formal doctrine.
Earlier work on creativity and TM law. TM bakes in some
encouragement to choose certain types of marks by making it easier to get more protection
if you choose arbitrary or fanciful marks, which wouldn’t necessarily align
with the marketing literature.  Some
would say if you’re successful with arbitrary or fanciful, you’re in the best
possible shape b/c you’ll get the best strength. 
Also huge body of work on what confuses consumers.
Endogeneity question: some things may be confusing because we allow them to be
called confusing and then most competitors stop doing that and it gets more
confusing over time.  When nonconfusing
as matter of law, people get used to the practice.
Rebecca Tushnet
Jeannie Fromer did the heavy lifting about what has reached
legal academics and sometimes law. 
Hidden work that is proprietary. 
Tasting the TM in Pepsi/Coke studies.
What we know about brands v. what we know about TMs—Deven Desai
has written about the distinction and the lack thereof that has been part of
the problem.  In some ways courts have
created problems by conflating what businesses care about and what marketers
talk about, brands, with what the law historically cared about,
trademarks.  Language of psychology is
often thrown around freely, as in the old Mishawaka case where the court talks
about what people have been convinced to think they want, but still endorses TM
owner’s control over that value.  TM
information conception is TM as source indication—shortcut from mind to mind—versus
brand: store and producer of social signals, saying something about the
consumer and signalling specific qualities, such that interference w/ those
signals even in the absence of interference w/source signification is a concern
for TM law.  I previously wrote about
misuse of psychological evidence in claims to justify dilution law—a cause of
action in search of a theory.  Cautionary
tale for © and patent, perhaps—individual points are picked up by advocates and
arguably misused. 
If the story of © is, in large part, it’s not as important
as you think, that may also be the story of TM where confusion claims are
likely overstated, and harm from confusion is also probably overstated.  However, hope that we can get more consensus
by going to empirical claims is probably futile, as Dan Kahan et al have said
in many other legal contexts.  Our morals
are determining our reaction to empirical claims.
Skeptic about TMs as a reward for creativity except in the
very broad and perhaps unhelpful definition if anything successful is an
innovation, then yes, TMs do in some sense reward innovation.  But brands generally trade on images related
to things that are already popular: luxury, speed, cool.  Strategies for becoming well known exist,
though you can’t necessarily predict which ones will succeed—audience is a lot
of the contribution to that.  Skeptical in
part b/c I was thinking about the European approach of TM as “incentive”:
counting SKUs, correlating # of TM registrations with market success as
evidence of successful incentive; seems to me to be a fundamental
misunderstanding of causation and/or a failure to define terms.
Finally, and perhaps relatedly: sociology of registration:
written about differences b/t registration and infringement regimes.  Could supplement by doing more empirical work
with examiners and registration attorneys: what do they think they’re doing?
Commentators: Madhavi Sunder: We’ve talked mostly about pro producers.
Luxury brands offer the opportunity to talk about users, consumers, buyers, and
the work they do.  Signal distinction of
buyer, communities to which she belongs, her personal identity.  Barton Beebe has discussed what TM owners do
to keep consumers in their place, but it’s very hard to keep them there.  Consumers appropriate & perform luxury
brands in unique/unexpected ways: $2000 boots combined w/a thrift store outfit.
“Individual consumers create their own stories and they stretch their budgets”—excellent
new book on Luxury
Economy and IP
edited by  Sunder
& Haochen Sun (in which I also have a chapter).  Also Lemley & Dogan, Sonia Katyal. Brands
are selling community, but they are creative products of consumers just as much
as they are of corporations.  Where is
the creativity in TM and branding?  Is TM
creative in the literary sense or more in the patent sense of innovation based
on/moved by science?  Branding as science
from producer perspective, but more akin to literary creations given how
consumers use them—they’re stories/performances coauthored by owner &
Sci & tech studies: the way these objects move our world
for better or worse: Marlboro man has blood on his hands.  Apple’s “rip, mix, burn” helps us understand
our own powers and perhaps our limitations. Native Americans internalize the
slur “Redskins.” But now we see Asian-American ban seeking to register “Slants”
to take back the slur. Brands don’t distinguish products, they distinguish
people, as in Rochelle Dreyfuss’ 1990 article—the lingua franca of our culture.
Yesterday’s discussion of patent as brand: Today they’re not
market driven but marketing driven—looking good, not doing good—image over ego
incentivizes us to act. Not about how inventive your company is, but how
inventive people think your company is.
Companies like Samsung are remaking themselves to focus less
on tech breakthroughs and more about aesthetic allure of products and company
as a whole. Turn to sensation has paid off—social and emotional connections w/
customers.  Apple became most valuable
company not by creating products that are tech breakthroughs but rather by
creating products w/standout design.  On
design patents: can have doctrinal payoff as we think about turn to design
patents and their desperate need for reform. 
Iconic design as melding simplicity, utility, ease of mass
production.  “Wicked problem” of design
thinking is insistence on lack of rigid boundaries b/t industrial engineering,
marketing, design—that can actually help us approach design patents doctrinally
differently.  TM and © try to push
functional aspects outside protection; skeptical eye towards hybrids in
functionality/creativity should lead us to be more skeptical in design patent
as well.
Mark McKenna: Research in this area is about brands and not
TMs, and those aren’t the same. They’re not asking the same questions we
are.  There is a line of literature that’s
about confusion, but if you read those studies, they’re actually about
association—whether consumers link one thing to another thing. They’re not
about source confusion. There’s often an agenda in those articles to redefine
the legal terms to match the marketing terms, and that’s important to
recognize.  One reason that diving into
this literature is important: if you read it through the lens of the doctrine,
you think it’s not about the right questions. If you read doctrine through the
lens of these studies, modern TM law makes a lot more sense descriptively.
Plaintiffs use the tools they have to do what they want. 
Where the literature is: the two deepest areas are done by
social psychologists and marketing dep’ts; they are similar but don’t talk to
each other, don’t cite each other, don’t publish in the same journals. These
are primarily about the ways consumers react to various branding strategies:
brand extensions, development techniques; studies are done for managerial
purpose. Consumers’ interaction w/favorite brands resembles their interaction
w/religious icons.  fMRI research shows
similar brain activation.  [But cf.
doubts about fMRI research.]  Opportunity
for researching how people form communities; they form around brands, as
anthropologists like Rosemary Coombe understand.
Holistic branding: a lot of ads for tobacco got banned in
Europe; Marlboro started paying bar owners to use the color red and a Western
motif b/c they had pretty good evidence that reminded people of the Marlboro
Literature suggests at consumers rarely draw bad conclusions
about the original goods from thinking goods are associated, unless the goods
are highly related.  But the literature
does show some kind of “harm”—the impact on future brand development/narrative
of the brand. More about market preemption or derivative work rights.  Also interesting work on interference
w/decisionmaking, including the problem of over-choice in the market. Notable
how little of that is about TM; if we were serious about reducing search costs,
TM is a terrible tool.  In some cases the
research suggests that some of the things we incentivize/protect through IP
contribute to the problem of over-choice—attempts to differentiate in the
market based on fashion/similar motives. Adding additional layers of IP may
make that problem worse.  [This is an
example of “good from individual company perspective, bad for social welfare”—differentiation
from other products in the same category across multiple features may make it
harder for consumers to compare and to make decisions, but that can be a
private benefit if it means they stick to you.]
What research we don’t have: not very much about the way
companies think about TM as legal entities as compared to other kinds of
IP.  “Why do companies patent” v. “why do
companies create patentable subject matter”? 
Why do companies choose TM/branding instead of other strategies? The
research is so heavily about consumer reaction. 
Proprietary research might be one of those places.
Mark Lemley: Role of functionality in TM law—maybe we should
be defining many many more aspects of a brand as functional than we are. If
not, maybe there’s something wrong w/our current idea of functionality and we
need to accept our protection of things w/functional characteristics and give
up on the idea of excluding functions. 
Another thought: perhaps we ought to be very skeptical of the idea of
inherent distinctiveness. Just as we decided not to assume anything is
inherently distinctive in product design, maybe we should do that for word
marks as well if there is a bunch of subliminal signaling drawing people in
that isn’t related in the first instance to that source until secondary meaning
RT’s claim that empirical evidence gets ignored and filtered
through morality: most profoundly depressing thing he’s heard in 2016, the year
of Trump [and profoundly related to that!]. Resists the notion it’s true,
shouldn’t we give up the game? Moral argument won’t be related to good policy
outcomes.  [I don’t think that’s
inevitable—Wal-Mart is a case packed with
statements that have the form of factual claims, but what’s driving it is a
commitment about competition. Facts are important because we shouldn’t be wrong, but we have to do the moral
argument coextensive with that.]
Rob MacCoun: Lots of psych research is associational in
nature: exposed to X, think about Y. 
Bear in mind these associations are asymmetrical. A evokes B does not
tell you how well B evokes A.  [I wrote
about this in Gone in 60 Milliseconds
too.]  RT’s work: if you get into a cab
in NYC, “Kennedy” is not ambiguous despite the existence of Differ w/RT b/c
there is dilution if you’re not in the context of being in a cab, every new “Kennedy”
object you encounter makes you less likely to think of the airport. [My point
is that mostly we do have the context.] Psych is a catalog of phenomena, not a
grand theory.  You shouldn’t start w/any
one and build a theory of TM or patent from it. Psychologists are just as
guilty of that—we think we see immediate relevance but it can be misleading b/c
of all the other things that impact these issues. Design studies specifically
to answer TM questions.
McKenna: Q is whether empirical claims are really driving
the bus here. TM is shot through w/claims that it’s building a world based on
how consumers really behave, but that’s not true. What MacCoun counsels against
is exactly what TM does. We’re making lots of choices about when we care about
the empirical facts, and when certain facts should override others. Behoove us
to be clear about when we’re normative and when we’re empirical.  Wal-Mart
and Dastar intermingle—tendency to
make normative arguments in empirical-sounding terms.
Jessica Silbey: reproductive choice/Carhart—same thing, Justice Kennedy picked an empirical claim about
how women may regret abortion.  That was from
a social movement around abortion. Then social movement countered it, creating
empirical studies/recording of facts rejecting that statement and the meaning
behind the statement. Now, you get a total reversal in the SCt about the “regret”
narrative and the role of law in changing whether “regret” happens. What would
that look like in TM.  If the issue is
the normative environment, what would a movement look like to capture the
freedom of expression or competition? 
Emotional attachment people have to marks as names. My
research suggests people talk about brands as their “babies.”  When the fight becomes about one’s emotional
relationship to one’s company’s name rather than consumer confusion; those
cases are deeply unsolvable.  Becomes a
crapshoot.  In other areas like family
law or defamation, the courts are willing to say, I know you’re hurt, but too
bad.  Why are they not willing to do that
in a TM case?
Sprigman: Maybe they will do that in dilution, in the 1A
Irreducible minimum of confusion as a key concept.  When I try to explain how much confusion is necessary
for liability, students ask whether they’re confused or just making
associations b/c people have a rage to make associations.  80% of people aren’t confused.  If we disallow the D from using it’s mark, we
may right a certain percentage of confusion, but in the process we deprive a
bunch of other people of a tool they’ve learned how to use, including the
associations they’ve made w/the D’s mark. 
Built in to TM law must be the idea that this isn’t a big deal, this
content is readily replaceable and consumers will heal. What Fromer said
suggests that this won’t be the case always; the second best may be quite a bit
worse in some product categories. Consumers won’t heal fully.  If that’s the case, implication is that if we
believe the linguistic story about how some marks are more appropriate to some
product categories than other marks, we have to do both sides of the equation.
Lemley: one area where we do this, for precisely this
reason, is genericide.
Andrew Torrance: Trade secrets (Coca-Cola, KFC) being used
as TM; © used as patent for software; TM used as patents (Traffix); patents
used as © in the design patent context. Bleeding of rights into rights. Porous
Fromer: Unclear what we mean by “distinctiveness.”  Indicative of source?  That’s just indicating an association, but if
we care about certain costs, that might not be enough.  Another way to think about it: what
associations does it trigger in people’s brains? If it lights up a lot of
connections w/the underlying product/service, maybe we should worry about
giving exclusive rights in that claimed mark. 
The less it’s associated w/other things, the less we might want to care
about granting rights. Current categories aren’t fine-grained enough to deal
with that. Psycho-linguistic literature might be helpful here.
Sunder: Heightened standard for product design; two
functionality doctrines; idea that labeling products can avoid confusion—TM and
trade dress doctrine can be powerful tools if used properly.  Design patent is where companies w/broad
conception of “brand” are turning there b/c there isn’t a functionality
constraint in any real sense.  Design
patent can cover ease of use. We should expand our conversation to design
patent.  [Though the problem is that no
principle of psychology or sociology presently would limit design patent
rights, precisely b/c the doctrine says that functionality in the TM sense
doesn’t matter.]
Lisa Ouellette: Linguistic functionality.  Matter of degree: Viagra is better than
control over “erectile dysfunction”—we shouldn’t get rid of tools pushing
companies towards one end of the spectrum.
Pedraza-Farina: There is research on brand communities, in
terms of McKenna’s point.  An interesting
way to think about them.  Are those of
particular concern?  Maybe they have
ability to manipulate the brand, maybe they are the ones who could be affected
by dilution (or couldn’t be).
McKenna: Stimulus generalization isn’t limited to
words.  Many marketing folks have been
trying to count stimulus generalization as confusion. Study about whether
people generalize from product packaging characteristics, stripped of any TMs:
clear plastic in a particular shape.  The
kinds of things that consumers thought when they saw another package of candy
in the same sort of package: oh, that’s also refreshing and minty; chewy like
gum; taste good—they generalize all sorts of product attributes based on
packaging.  If we question this about
words, this is a generalizable problem through TM. 
In thinking about number confused, consider longstanding
debate around whether TM is for protecting consumers or not.  Courts have internalized harm to consumer
idea—even 20% confusion is harm to that particular consumer.  Difficult to hang on to notion of consumer
focus if we continue on this road, esp. with addition of design patent. More
focus on using these things as interchangeable IP tools=less focus on consumer.
David Fagundes: Managing TMs to avoid associations w/outlier
communities: Harley-Davidson was anxious about associations w/retirees—took away
the edge. Plausible that brands are managed to avoid certain communities, but
not necessarily as you think. 
Mark Suchman: though the politics of overtly opposing that
would be just as bad as for opposing other groups.
Dan Burk: Traditional knowledge/preserving traditional
community; fan communities that coalesce around copyrighted properties;
knowledge communities in patent.  There
may be something there—do we want the TM owner to be a kind of fiduciary and have
obligations to preserve that group?
Stephanie Bair: interested in the ability and conscious
effort by brands and branders to bypass conscious rational decisionmaking and
evoke these visceral responses. Tension b/t that and traditional efficiency
rationales of reducing search costs and trying to get brand owners to invest in
quality products.
McKenna: so much depends on what you identify as
characteristics of the product. Laura Bradford has
nice paper
on emotional valence of brands. Should we differentiate that
from other characteristics of the brand?
MacCoun: lots of research on subliminal advertising. We know
that it’s real but ephemeral.  Dominant
theory of persuasion is elaboration model that distinguishes b/t peripheral
cues and central route to persuasion. Those unconscious associations are easy
to create and also easy to knock out by the competitor—only good until the next
unconscious source comes along with its own cue.
McKenna: not so much unconscious as emotional appeal/System
Tim Holbrook: who controls the market?  Inclusion and exclusion: using the power of
the state to do that. That broader context gives a different angle on the
Burk: If we’re protecting visceral/emotional reactions in
TM, there’s a strong strain of 1A cases saying the 1A is about deliberate,
thoughtful, rational reactions. My sense is that one of the friction points in
the law is TM and the 1A. Something interesting there about state intervention
into expression. If one is really about visceral reactions, what relation to 1A
Sunder: Lemley & Sprigman are writing about
functionality screens. Science of TMs: one question is that we could push
towards calling everything functional—there’s a science to how we read the red
colored sole. Couldn’t we take that into © as well?
Lemley: branding claims: not just a move away from
consumers, but a move away from unfair competition: more property, “if value
then right” approach.  He’s skeptical of
that move; not clear to him that it’s socially desirable thing for gov’t
intervention to encourage. Morally neutral (v. inventions, expression). Also
not clear we need legal incentive given other incentives to engage in this type
of branding. To the extent it’s valuable to encourage a religious-like reaction
in people, perhaps making them happier, that is collaborative and not
unidirectional. A law facilitating that still shouldn’t be “I made it and I own
it” even to the extent that © and patent are b/c that value is collaboratively
created. People feel proprietary interest in a brand they’ve helped to create.
Readers do also connect to books, but even more true in TM.
McKenna: One immediate difficulty in imagining a world that
only protects rational decisionmaking is that literature demonstrates it’s
impossible to disentangle. The nonrational stuff conveys info about tangible
product characteristics in interesting ways. Lemley’s point: you might
recognize that it’s fine for you to build that with consumers. That isn’t
deceptive and can’t be separated from other stuff. But we should recognize the
same when other people use the mark nondeceptively.  The state wouldn’t get involved w/o
deception; if we allow TM owner to create meaning, everyone else should be
allowed to do so too.  TM’s got a bunch
better at this in the 1A context over the past decade.
Silbey: people talk about how many TM registrations they’ve
collected w/pride.  They say collection
is important for the business model: TM was the most valuable asset.  Can correlate value to number and breadth of
marks.  Hard to square w/doctrine of TMs
as distinct signifiers.  Courts say there
are lots of options, but TM owners feel special connection w/theirs.  TM as limitless v. TMs in practice has a
social life/actual practice of collecting marks.

McKenna: Stacey Dogan argues that we need competing
counternarratives about the harms of protection—speech, competition. It won’t
be enough to say “you’re making these rights too broad.” That maps pretty well
descriptively to the places where TM has swung back in the past few decades—increasing
bite of functionality, Wal-Mart.  Other things courts seem to get is boundary
questions—when this starts to look like ©, that bothers them; they want to say
there’s a reason for having different IP regimes.

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