In Search of Validity: A New Model for the Content and Procedural Treatment of Trademark Infringement Surveys

A world devoid of trademark protection is difficult to imagine and has in fact barely existed.\u27 Even marks developed thousands of years ago served the purposes of those present today: trademarks allowed for advertising, answered questions of ownership, and provided quality seals. In modern language, it is said that trademarks seek to economize on information costs by providing a compact, memorable, and unambiguous identifier of a product or service. Trademarks thus both serve to attract consumers to a good in the first place and then encourage consumers to return to the product. If an individual liked a particular product, a consistently used mark will give him the assurance that whenever he next encounters a product with the familiar mark, he will enjoy another item that has the same producer and properties as the initial good. Naturally, a producer will in turn potentially reap rich financial rewards for distributing popular, high-quality products because customers will return to buy more of the same. This relationship between producers, consumers, and trademarks can only operate properly, however, if a particular trademark designates only a single product or origin. Imagine, as an extreme case, a consumer buying a bottle with the familiar Coca Cola label only to find herself drinking a noncaffeinated, strawberry-flavored beverage that was made by a company of a much lower reputation. Indeed, brand names serve as information \u27chunks.\u27 They represent core nodes in memory around which other \u27associated\u27 information is connected and organized. Given only a familiar brand name, a host of relevant and important information can be efficiently called into consciousness. When this link between brand names and memory is disrupted because, for instance, another product falsely evokes the memories one associates with the original good, consumer confusion and disappointment ensue