This Article explores the following question central to trademark law: if a homograph has both a surname and a trademark interpretation will consumers consider those interpretations as intrinsically overlapping or the surname and trademark as completely separate and unrelated words? While trademark jurisprudence typically has approached this question from a legal perspective or with assumptions about consumer behavior, this Article builds on the Law and Behavioral Science approach to legal scholarship by drawing from the fields of psychology, linguistics, economics, anthropology, sociology, and marketing.
The Article concludes that consumers will regard the two interpretations as separate and unrelated, processing surname trademarks through an anonymity heuristic comprised of two elements. First, consumers understand that the trademark signals the unknown source of the goods or services bearing the trademark. Second, consumers do not equate the trademark with a particular individual bearing that name or believe that someone with that name offers the goods or services. Contrary to the traditional characterization of surname trademarks as merely descriptive marks, the research into human behavior suggests that they fit better in the category of arbitrary marks.
Five key findings support the anonymity heuristic and the characterization of surname trademarks as arbitrary marks: (1) people process words to resolve ambiguity; (2) people process surnames differently than other words; (3) people process trademarks differently than other words; (4) consumers understand trademarks within a cultural framework; and (5) people process surnames and trademarks through separate nodes.
Frequency and uniqueness will impact the anonymity heuristic in two ways. First, for infrequently purchased goods, consumers will develop a weaker trademark node and the surname node for the related homograph may compete with that the trademark node. Second, if a famous person or a personally known service provider with an uncommon surname uses that surname as a trademark, consumers may associate that trademark directly with that person, interrupting the anonymity heuristic.
Based on the learnings from the multi-disciplinary literature, the Article recommends removing the statutory bar to trademark registration of terms deemed primarily merely surnames. Instead, a new own-name defense can supplement the existing prohibitions against deceptive trademarks to promote honest use of surnames as trademarks.
Russell W. Jacobs,
The Anonymity Heuristic: How Surnames Stop Identifying People When They Become Trademarks,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol124/iss2/3
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