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.
Bartholomew, Mark, Navigating Trademark Law’s Empirical Turn (December 2, 2024).
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