We make many "simplifying" assumptions in trademark law--such as the "reasonably prudent consumer" and that 10% of consumers being confused (with 90% not being confused) is enough to constitute infringement. But legal doctrines are filled with simplifying assumptions; so is this simplification "problem" alone enough to justify a reworking of trademark law? Eric.

Eric -

If it were just a simplification, I'd probably be more reluctant to endorse serious change. But this strikes me as more than simplifiction - it sounds like a rejection of an important assumption underlying modern trademark law. I'd like to learn more about the basis for McCracken's argument before advocating anything, but it seemed like a pretty stark contrast to me.

Mark, Eric:

McCracken's post is of a piece with recurring themes in his work: "plenitude" and the idea that we increasingly manufacture our own meanings for the products and works with which we interact. Plenitude describes a world where tastes and identities are increasingly diversified and self-made. One thing that has drawn me to McCracken's work is that he sometimes comments on how these trends collide with the desire of copyright and trademark owners to control the "message" conveyed by their IP. (The uneasy relationship of creators with fan fiction is a great example this collision). Free culture advocates talk about these phenomena too, but what I like about McCracken is that he looks at them more analytically and dispassionately. In any event, with respect to trademarks, my comment here is limited. Trademarks signify the source of a good or service, but they are also asserted to signify many other things: goodwill, a consistent quality, a particular consumer experience, sponsorship, authorization, etc. Expansion of trademark law is sometimes based on protecting these "other" things that trademarks signify. I have heard or read arguments by Mark, Eric, Eric's colleague Irene Calboli and others that challenge whether trademarks really signify these "other" qualities. I wonder when we unravel it all whether we are left with trademarks as just a source signifier? Or, am I unfairly letting the exceptions swallow up the general, simplified rule, as Eric seems to suggest in the comment above?

Thanks for the interesting response Mark. I hate to be Clintonian, but I suppose the answer is that it depends on your definition of "source." Source used to mean the physical source of the product, or at least the entity ultimately responsible for it. I think source means something much broader than that now - it incorporates all of the semiotic meaning attached to a mark. My point with respect to McCracken's post was that, if his observation is true as a general matter, that should really inform (at least) the question of whether trademark law ought to work to preserve a singular meaning. It should particularly make us question whether mark owners lose value when meaning is complicated by other uses.

I'm intrigued by the impression that dilution law is intended to keep trademarks singular in meaning. Because, I think practice has borne out that the opposite is true. Instead of using anti-dilution laws to keep others from infringing on the singular meaning, it seems that mark owners are using the singular meaning to keep others out of those fringe "messy" areas so that the mark owner can claim them for himself.

"Way back" in my law school days, I attended a colloquium where Prof. Sara Nelson presented a paper about a very similar phenomenon. But she couched it in different terms. She pointed out that dilution laws were not really preventing dilution of marks, rather, dilution laws were merely allowing mark owners to dilute themselves. The example she gave was "Virgin." Dilution laws have allowed the mark owners to keep competitors out of the "fuzzy" areas around the core mark, and then the mark owner themselves moved into that "fuzzy" area. She posits that allowing the competitors in (getting rid of dilution laws) would have kept the "true meaning" of the brand singular, or focused on a singular good. But by allowing the mark owner to prevent dilution (esp. of the "blurring" variety), the meanings of the marks have become blurred by the marketing/branding actions of the trademark owner.