Trademark Tarnishmyths.

Trademark law protects famous marks from dilution by tarnishment, defined by statute as use likely to "harm the reputation of the famous mark." Tarnishing uses are typically those that connect a mark with disreputable goods or topics, like sex or drugs. Mark owners worry that consumers will not purchase products connected with sexually explicit or drug-related materials, and courts often presume the same. If those associations likely cause consumers to withhold custom or dissipate goodwill consumers have invested in the mark, anti-tarnishment protection might be justified. But if that harm is more mythic than real, the law penalizing tarnishing use of trademarks may be ripe for judicial skepticism or congressional reevaluation. Indeed, constitutional invalidation might even be on the table. In a series of recent cases, the Supreme Court invalidated laws targeting false claims to military honors and the registration of disparaging, scandalous, or immoral trademarks on First Amendment grounds. In each case, the Court concluded the regulation was not narrowly targeted to an established harm. If harm via tarnishment happens rarely, or never, then laws penalizing tarnishing speech might violate the First Amendment. We conducted two experiments to determine whether tarnishment likely occurs in prototypical cases--when the mark in question is affiliated with sex, drugs, or sacrilege. In one study, treatment subjects viewed images of target marks used to sell cannabis products or in off-color, sexual contexts. We hypothesized that participants exposed to the potentially tarnishing instruments would respond by downrating the desirability of the tarnished mark. Instead, we found the opposite: for most marks, exposure to the drug-or sex-related stimulus increased or burnished the perceived desirability of the targeted trademark. We also hypothesized the tarnishment effect would be stronger among politically conservative respondents. While we found no net tarnishment effect among conservative respondents, the burnishment effect was more pronounced among liberal respondents. In a second study, treatment subjects viewed banner ads with cannabisinfused Skittles and satanic-themed Sunday sales of Chick-fil-A sandwiches. We hypothesized that conservative respondents and respondents with high religiosity would evaluate the target brands more negatively after multiple exposures. We found that respondents with high religiosity reported Chickfil-A was less tasty in the test condition. But we also found that conservative respondents exposed to the drug-related stimuli reported Skittles were more wholesome compared to the control--another burnishment effect. The results of these experiments suggest that the case for tarnishment might be weak in circumstances where courts have been most willing to presume tarnishment occurs. Indeed, much of what courts have presumed about the tarnishing effect of sex-, drug-, and sacrilege-related uses may be more mythic than material. [ABSTRACT FROM AUTHOR]