The Suppressed Misappropriation Origins of Trademark Antidilution Law: The Landgericht Elberfeld's Odol Opinion and Frank Schechter's The Rational Basis of Trademark Protection
Frank Schechter’s 1927 article "The Rational Basis of Trademark Protection", which remains the most cited law review article ever written on trademark law, is generally recognized as the origin of the concept of trademark dilution. Yet as is less well recognized, Schechter’s discussion of trademark dilution in "Rational Basis" relied heavily, though cagily, on the true origin of the concept: the 1924 Odol opinion of the German Landgericht Elberfeld. "Rational Basis" quotes extensively from the Odol opinion and borrows much of the opinion’s argument and terminology. Yet Schechter suppressed and apparently deliberately deleted from his quotation of the opinion its central holding, that "[i]t is opposed to good morals to appropriate thus the fruits of another’s labor in the consciousness that that other will or may thereby be damaged." This brief essay, a chapter in the forthcoming "Intellectual Property at the Edge: The Contested Contours of IP" (Rochelle Cooper Dreyfuss and Jane C. Ginsburg eds. 2013), argues that Schechter deliberately sought in Rational Basis to obscure the true nature of the Odol case and of antidilution protection, and that even a century later, his effort at obfuscation remains more or less a success, at least in the United States. What Schechter sought to obscure in "Rational Basis" is that the Odol case was not, strictly speaking, a trademark case. Rather, it was a misappropriation case that happened to involve a trademark. Schechter sought to suppress this basic truth — that the concept of trademark dilution is essentially a misappropriation concept — in order to sell his proposed doctrinal reforms to an American audience altogether suspicious of misappropriation doctrine and increasingly under the sway of American Legal Realism. To do so required a great deal of finesse, or to but it more bluntly, of dissembling, and "Rational Basis" is full of it. Due both to its frequent misdirection and ambiguity and to its emphatic suppression of any suggestion that trademark dilution is a form of misappropriation, "Rational Basis" has remained an altogether open text. Concepts like "blurring" and "tarnishment" have rushed in to fill the void left in the absence of misappropriation. Even now, in the face of ever more scholarly and judicial commentary recognizing that dilution is essentially a form of "free-riding," and likely one that typically inflicts no substantial harm on the misappropriated mark, the obfuscatory nature of Schechter’s text enables the concept of dilution to survive — and thrive — behind a fog of indeterminacy.
Gone in Sixty Milliseconds: Trademark Law and Cognitive Science
Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that "Kodak soap" was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark. Trademark owners think dilution is harmful but have had difficulty explaining why. Many courts have therefore been reluctant to enforce dilution laws, even while legislatures have enacted more of them over the past half century. Courts and commentators have now begun to use psychological theories, drawing on associationist models of cognition, to explain how a trademark can be harmed by the existence of similar marks even when consumers can readily distinguish the marks from one another and thus are not confused. Though the cognitive theory of dilution is internally consistent and appeals to the authority of science, it does not rest on sufficient empirical evidence to justify its adoption. Moreover, the harms it identifies do not generally come from commercial competitors but from free speech about trademarked products. As a result, even a limited dilution law should be held unconstitutional under current First Amendment commercial-speech doctrine. In the absence of constitutional invalidation, the cognitive explanation of dilution is likely to change the law for the worse. Rather than working like fingerprint evidence-which ideally produces more evidence about already-defined crimes-psychological explanations of dilution are more like economic theories in antitrust, which changed the definition of actionable restraints of trade. Given the empirical and normative flaws in the cognitive theory, using it to fill dilution's theoretical vacuum would be a mistake. I. Introduction Law attempts to shape human behavior and therefore can benefit from behavioral science. Psychology and economics can clarify legal concepts like intent and damages, and can predict the consequences of various regulatory regimes, guiding lawmakers as they seek specific goals. But jurists and legislators must be aware of the limits of science. Laboratory results may not reflect real-world experience. And even the most thorough model of behavior cannot tell us what laws are just. Cognitive science is especially attractive to trademark law because trademark protection is premised on a psychological assumption: exposure to a mark will trigger ideas and emotions in the mind of a consumer. Traditionally, trademark law has measured these responses through circumstantial evidence and consumer-response surveys, but in recent years, research advances have promised to replace intuitions, whether courts' or consumers', with hard facts. Neuromarketing, the investigation of marketing and branding techniques through observation of brain activity rather than consumer selfreports, is the most recent contender in the search for greater understanding of consumer behavior. Among other things, it illuminates the common wisdom that first impressions are cmcial. Researchers can now establish that it only takes fifty milliseconds-a twentieth of a second-for consumers to form opinions about Web sites.1 Once such an opinion is formed, cognitive biases make it easier for consumers to keep believing than to change their minds.2 Neuromarketing also appeals to the idea that there is an objective truth behind intangible brand values.3 It's well known that people like Pepsi better than Coke until they know what it is they're drinking, at which point preferences shift to Coke. Part of what people are drinking is the trademark. Magnetic resonance imaging (MRI) shows that different areas in the brain light up in blinded versus nonblinded taste tests.4 Positive associations with the brand change the experience of tasting soda, evoking memories along with immediate sensory impressions.5 Neuroscience thus promises to explain why we buy and to give advertisers information about consumers' brains that consumers themselves don't know. …
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.