Search and Persuasion in Trademark Law

The consumer, we are led to believe, is the measure of all things in trademark law. Trademarks exist only to the extent that consumers perceive them as designations of source. Infringement occurs only to the extent that consumers perceive one trademark as referring to the source of another. The most “intellectual” of the intellectual properties, trademarks are a property purely of consumers’ minds. The simple idealist ontology underlying trademark law is largely responsible for the law’s characteristic instability. Since 1992, the Supreme Court has considered – and in some cases, reconsidered – seven trademark cases. The Court’s copyright cases garner the media and celebrity attention, but it is the trademark cases that most clearly express the unsteady state, the entre deux temps condition, of current American intellectual property law. There is a reason for this. Trademark law is arguably the most difficult of the intellectual property laws to contemplate, and its outcomes when applied to facts are the most difficult to predict. This is because it requires a form of what John Keats called “negative capability,” the capability, more specifically, to think through the consumer and see the marketplace only as the consumer sees it. From the beginning, trademark law has sought to resist the negative capability called for by its underlying idealism. It has sought to limit the dependence of the object of the law, the trademark, on the vagaries of the subject of the law, the consumer. In doing so, the law has embraced an “ideal type” of the subject. Just as copyright doctrine has based itself upon a largely mythical “author construct,” so trademark doctrine has based itself upon a largely mythical “consumer construct.” Where the former describes an impossibly romantic producer, however, the latter describes an impossibly utilitarian consumer. Both figures are conceived of as sovereigns, that is to say, as egoists, but where the “sovereign author” is inspired, even capricious in her egoism, the “sovereign consumer” is a utility maximizing agent of unbounded rational choice. By means of “a mechanical procedure of search,” which trademarks are said to facilitate, she satisfies exogenously determined preferences, on which trademarks are said to have no effect. Her psychology is understood to be predictable, administrable, and ultimately ameliorative. The sovereign consumer is the antithesis of and eliminates the need for negative capability.