Trademark Infringement, Trademark Dilution, and the Decline in Sharing of Famous Brand Names: An Introduction and Empirical Study

Intellectual Property and Copyright and Trademark

Article Snapshot

Author(s)

Robert Brauneis and Paul J. Heald

Source

Buffalo Law Review, Vol. 59, No. 1, pp. 141-212, 2011

Summary

The authors empirically study whether trademark protection actually affects rates of brand name sharing.

Policy Relevance

Brand name sharing has not been empirically studied in depth to date. This article provides data that shows that the independent use of brand names has steadily declined over time and significant portion of that decline is likely attributable to changes in the laws of trademark infringement and dilution.

Main Points

  • Many business operate under the same brand name, for instance, “Smith’s Cleaning Service” and “Smith’s Delivery Service.” This is allowed because trademark law has both geographical and type of good or service requirements.
     
  • The federal government and many states have enacted trademark dilution statutes that have resulted in much broader protection to brand names.
     
  • Very little trademark infringement research has focused on actual brand name uses in the marketplace. Instead, most research has focused on trademark litigation.
     
  • The study focused on 131 different brand names in the white pages of phone books in Chicago, New York City, and Philadelphia. Six years were used to draw data from: 1940, 1960, 1980, 1990, 2000, 2010.
     
  • The data shows that the overall trend is toward lower and lower rates of brand name sharing over time.
     
  • There are both legal and non-legal possible explanations for the decline in sharing.
     
  • Non-legal possible explanations include: economic changes in the municipalities studied, family migration, a decline in the popularity of brands studied, a shift in the popularity of business name types, and a cultural trend toward personalization.
     
  • The possible legal explanation for the decline in sharing is the increase in trademark infringement and the adoption of trademark dilution statutes.
     
  • Most likely the true cause for the decline in sharing is a combination of the legal and non-legal explanations. More research will lead to a better understanding.
     

 

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