Document Type
Article
Publication Date
12-16-2024
Rights
Abstract
From neuroscience to linguistic databases to artificial intelligence, new technologies point to a potential sea change in our understanding of the consumer. The point of this Article is to sound a note of caution about enhanced empirical insight into shoppers’ minds. A completely empirical approach to trademark law would be undesirable, but so would blinding our eyes to better evidence of consumer perception. The key is a considered balance of trademark law’s descriptive aspects with its prescriptive ones. The Article provides some suggestions—including crafting avenues for maintaining debate about normative guideposts, maintaining epistemic humility about predicting human behavior, and borrowing non-empirical doctrines from other bodies of law—for successfully maintaining this balance in the face of trademark’s empirical turn.
Publication Title
Houston Law Review
First Page
247
Last Page
274
Recommended Citation
Mark Bartholomew,
Navigating Trademark Law's Empirical Turn,
62
Hous. L. Rev.
247
(2024).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/1258
