The Scope of Trademark Law in the Age of the Brand Persona

Abstract

This response to Mark P. McKenna's A Consumer Decision-Making Theory of Trademark Law, 98 Va. L. Rev. 67 (2012), applauds Prof. McKenna for arguing in favor of more rigorous evidentiary constraints on the scope of trademark law but cautions against restricting that scope too greatly. When brands are commonly described as having personalities, and marketers have long talked about brands in anthropological terms, we should not be surprised when both brand owners and consumers see brands as capable of suffering reputational injuries. Prof. McKenna's article appears to favor excluding such harms altogether from unfair competition law; I am not so sure. Regardless, Prof. McKenna's thoughtful attention to some of our accepted trademark discourse provides an opportunity for trademark scholarship to ask additional questions about trademark law's scope in the age of the brand persona and about how we might best reconcile the interests of producers and consumers.

Keywords: trademark, reputation, brands, dilution, infringement, persona