Placing Trademark Litigation in a Consumer Behavior Theory Context

1. Placing Trademark Litigation in a Consumer Behavior Theory Context Dr. Eli Seggev

2. Litigation Issues • Likelihood of confusion • Dilution • Trade dress • Secondary meaning • Genericness • Descriptiveness • Misleading communication

3. What do consumers do? Why do they do what they do? How do they go about it? Brand choice behavior Motivation: physiological and learned Information processing Consumer Behavior Theory Issues

4. What Is Marketing Information? • Product design (trade dress) • Brand name • Brand name rendition (logo; symbols and the combination thereof) • Marketing communication of the benefits the brand promises to deliver for the purpose of building consumer expectations • Sometimes, comparative benefit analysis vs. other brands

5. Principal Reasons for Litigation • Misuse of marketing communication for the purpose of: • Presenting a brand in a better light than based on its own merits • Enhancing a brand’s image at the expense of another brand • Building false positive expectations regarding a brand’s own benefits or false negative expectations regarding another brand’s benefits

6. How Can Consumer Behavior Theory Aid the Litigation Process? • By applying consumer research measuring tools to litigation • Measurement can establish the degree to which the contested actions affect consumers’ brand choice behavior • Consumer research is the most economical way of providing factual information about large numbers of people who might be affected by the contested actions

7. Bridging the Gap Between Litigation Needs and Consumer Behavior Theory Legal Doctrine Trier of Fact Consumer Research Consumer Behavior Theory • Concepts • Variables • Operational definitions • Measurements • Concepts • Terms • Words Translation & Interpretation Measurement