Content area
Full Text
Introduction
The human desire to protect one's own is as old as humanity itself. The need to protect oneself, one's loved ones and all that a person holds dear from threat has led to countless wars over many centuries. Protective actions are described throughout the social sciences literature, and the need to protect and guard (often referred to as "the need for security") is a central tenet in most motivational theories.
In a commercial context, this desire to protect and preserve often plays out in disputes over intellectual capital. Many firms fiercely protect their intellectual capital, and these disputes frequently end up in protracted legal battles. A common cause of intellectual capital disputes is what can be described as trademark disputes. These disputes center on the plaintiffs' concern over what they believe is trademark/brand dilution. This dilution can take the form of either trademark/brand blurring or trademark/brand tarnishment.
Confusion is a central tenet of blurring and occurs not when a person is confronted with the junior mark (the tarnished or blurred trademark) and he thinks of the senior trademark (the registered trademark), but when a consumer thinks of the junior mark when seeing the senior trademark (Diamond, 2007; Holt and Duvall, 2008). Trademark tarnishment, on the other hand, occurs because the tarnished trademark is used either in relation to inferior products or services, or with an offensive or negative connotation (Burrell, 1999, pp. 12-24). The result of the "use" is that the reputation of the untarnished (senior) trademark is eroded and its good name is negated, resulting in an unfair advantage for the infringer. The nature of the "use" can include where parody (a form of social commentary) is used in an offensive or negative manner, creating unfavorable associations between the senior, untarnished trademark and the parodied mark. Tarnishment (including tarnishment by means of parody) is often alleged to cause economic harm by impairing the trademark owner's capacity to market the brand effectively.
In court cases involving brand dilution[1] (either by blurring or by tarnishment), plaintiffs typically attempt to prove the economic harm caused to the trademark owner. However, the research results that have been presented to courts to prove claims of trademark dilution have been regarded with a fair amount of suspicion (Bradford, 2008)....