Empirical Studies of Trademark Law
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Description
In one of the earliest efforts at bringing empirical methods to bear on trademark law, Judge Jerome Frank of the Second Circuit Court of Appeals questioned “some adolescent girls and their mothers and sisters, persons I have chosen at random,” about the facts of the case then before him in 1948. In the case, both the plaintiff and the defendant used the mark “Seventeen” for their respective products (Triangle Publ’ns, 167 F.2d 969 (1948)). Judge Frank reported: “I have been told uniformly by my questionees that no one could reasonably believe that any relation existed between plaintiff’s magazine and defendants’ girdles.” In the half-century that has passed since Judge Frank’s survey, we have undoubtedly come a long way in the sophistication and breadth of the empirical methods we employ in the adjudication of trademark disputes and in the study of trademark law. Indeed, the past two decades have seen an especially significant expansion in the empirical study of the workings of trademark law, ranging from the straightforward “case-counting” and systematic content analysis of reported court opinions to highly creative and innovative studies employing such varying resources as internet search engines, historic phonebooks, surveys of trademark lawyers, and massive datasets covering trademark registrations in the U.S. and Europe. This chapter attempts a brief review of the present state of the empirical study of trademark law. Section II covers studies of trademark registration. Section III considers studies of the concept of trademark distinctiveness. Section IV turns to empirical studies of the likelihood of confusion cause of action, while Section V covers empirical studies of trademark dilution.
Source Publication
Research Handbook on the Economics of Intellectual Property Law: Analytical Methods
Source Editors/Authors
Ben Depoorter, Peter Menell, David Schwartz
Publication Date
2019
Volume Number
2
Recommended Citation
Beebe, Barton C., "Empirical Studies of Trademark Law" (2019). Faculty Chapters. 233.
https://gretchen.law.nyu.edu/fac-chapt/233
