A trademark is an ultra-dense term – a word or small string of words – packed with a thousand different meanings to millions of different people. A trademark is a prized possession of anyone who owns one. But for most of the modern history of western commerce, the information it transmits out in the marketplace could be hard to control. Consumers could be confused, and the result of that confusion is great harm to the trademark owner…until now, perhaps?
By 2025, when consumers have many ways to find out about a product – its owners, its strengths and weakness – all while shopping or waiting in a checkout line, some wonder if a trademark’s special information-giving significance is still relevant.
Traditionally, businesses threw their marks out into the world, and in the case of the fortunate ones, were able to invest large amounts of cash to develop the right image, educate the public about what their product stood for, what it would do, and why it was the solution to some problem or another.
Trademarks were the single most powerful means not only to identify a product but to wrap it in hundreds of layers of meaning. Successful companies, over time, could leverage this process to create a gigantic brand, represented by their trademark.
The marketing world has become a different place. Consumers do not rely on the advertisement they would see in the daily newspaper, or sponsoring a television program, or advertisements on the radio. The prior static environment of billboards and bus stop shelters were certainly used effectively by people marketing everything from cigarettes to the local plumbing supply house.
There is infinitely more (almost literally infinitely) information available about a product or a brand today. So, unlike the past when someone trying to come up with a confusingly similar name could cause irreparable damage to a trademark owner, in which the trademark owner was given the challenge of correcting the message that spread confusion, today’s communication environment is different.
Brands can employ influencers, who have morphed the 30-minute television infomercial into a 10-second sound bite. There are thousands of leading influencers in every industry, followed by an endless parade of wannabes. New reporting about the 2024 presidential election suggests that streaming media allowed campaigns to target narrow groups of prospective voters who were uniquely desired as targets for a campaign’s message. Old-fashioned, broad net image advertising it ain’t!
Shoppers can check out a trademark owner’s own website, and potential consumers can go to retail sites which are full of consumer reviews, or some of the many well-known and generally reliable sites which review products and supply information about how well they work.
Does all of this add up to prove that what once was a big problem – the irreparable harm of product confusion – is now greatly over-estimated? Are consumers able to be so sophisticated that there should no longer be a fear of deception from a new product which has a similar name, logo or packaging? Accused trademark infringers make these arguments every day! But how valid are they?
As courts have applied U.S. trademark law throughout history, they have traditionally looked at about a dozen groups of facts to decide similarity. One of those facts considers the sophistication of the purchaser and the related question of how the products and services are sold. How the products and services are sold include whether the product is likely to be an impulse sale, purchased without much prior planning – or whether the purchaser does a lot of research. A common example of something that might be the classic impulse sale would be something sold at the discount store checkout. But it is no longer true that just because a product is only sold at the supermarket check-out, there is no opportunity to do research. It is pretty much just as easy to take out your phone and look up a brand of lip balm as it is to check out the specs a 55-inch television set offered for sale in the back of the store.
So why, when we have the entire universe of information at our fingertips, would we ever be confused between two names that are not identical? Part of the answer lies in two words: source and authorization. If two names (it could also be packages or logos) are similar enough, even though consumers are fully aware that the similarly named products are nevertheless different products, they may still think that that because of the similarity of the names, the entities “must” be related, or that one brand has authorized this other company. Consumers can be confused about the source, and they may be confused about whether one product manufacturer has authorized the other.
Recognizing the product and the image becomes second nature to the consumer of a brand with a long history. Sometimes this causes problems for the brand owner when they want to do a pivot with their product to address changing customer preference or demand. But when a company invests tens of millions of dollars every single year to develop a strong brand, and to keep reinforcing the relationship between a word, a product and the owner of that name, the trademark owner is going to always want as much of a buffer zone as it can possibly create. No one wants to rely on consumers doing research in the checkout line.
Whether in fact trademarks actually matter more than ever in 2025 is another discussion for another day. Perhaps in the wide-open marketplace that currently exists, it is harder than ever to differentiate products, and becomes even more necessary to be aggressive in protecting those names. But whether more important, the same, or even – as some might argue – a little less important, trademarks do still seem to matter a lot as we move into the second quarter of the 21st century.
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