Thomas R. Lee, Glenn L. Christensen & Eric D. Derosia, Trademarks, Consumer Psychology, and the Sophisticated Consumer

but is one who ?lacks special competency with reference to the matter at hand but has and exercises a normal measure of the layman's common sense and judgment.?⁷For the most part, however, the debate is a vacuous war of words, uninformed by any careful theoretical modeling of consumer psychology or empirical study of consumer behavior.

The academic literature is marked by a similarly empty rift. On one hand, so-called ?apologist? trademark commentary paints a picture of the consumer as the ?fool?-one highly susceptible to even the slightest suggestion of a connection between two trademarks.⁸So-called ?restrictionist? commentary quarrels with the ?conception of a consumerate of ‗presumptive idiots' who are

‗apparently befuddled by nearly everything.'?⁹Scholars on the restrictionist side of the divide see the consumer as an informed ?sovereign? who is

?actually habituated to ambiguity,? such that ?the degree of confusion [she is] actually likely to suffer is less than might otherwise be thought.?¹⁰

This fundamental disagreement is at the heart of a core theoretical divide in the trademark commentary. As Barton Beebe has noted,

The commentator proceeds from an initial assumption about the degree to which consumers act or are acted upon, about the degree to which they are creative subjects or the created objects of the trademark system . . . . The apologist commentator traditionally assumes that consumers act, the restrictionist, that consumers are acted upon. From these premises follow calls for more or less or at least different kinds of paternalism.¹¹

Although scholars offer strikingly different portrayals of the reasonably prudent purchaser, neither camp has attempted a comprehensive examination of the theoretical or empirical bases for their positions. Even Beebe, who makes a significant contribution in identifying some internal conflicts in each side's positions, openly declines to ?take sides in this debate,?¹²while acknowledging that ?trademark law lacks a well-developed theory of the consumer, and, specifically, of consumer sophistication.?¹³

This Article attempts to fill that void. We take seriously the oft-repeated- but seldom heeded-view that the fields of ?cognitive and consumer psychology? have ?much to offer those interested in trademark law.?¹⁴

Borrowing from scholarly literature in marketing and consumer psychology, we develop an extensive model of consumer sophistication. In the sections below, we first present a general summary of the relevant case law and then introduce the consumer behavior model that will serve as the core of our analysis. The model identifies two general antecedents to the exercise of consumer care (or ?cognition,? as it is phrased in the literature) by a sophisticated consumer: a sufficient level of ?motivation? for care and an adequate ?ability? to be careful.¹⁵

After developing the motivation and ability elements in some detail, we employ the model to analyze a strand of case law that is at the heart of the broader debate about the consumer mindset-cases that identify circumstances where the consumer is expected to be more, or less, ?sophisticated.? The informed, rigorous view of the consumer that emerges is much more nuanced and complex than that of either fool or sovereign. We offer a positive framework for understanding the basic strands of the judicial conceptions of consumer sophistication and interject normative criticism in cases where we find fault with the jurisprudence. Lastly, we employ the model to take a broader look at the relevance (and relative significance) of consumer sophistication in trademark infringement cases.

Our methodology offers insights that can inform-and transform-a broad range of issues in a body of law that can no longer afford to ignore the field of consumer psychology. By moving beyond stereotypes and rhetorical flourishes about the validity vel non of the portrayal of the consumer as the

?presumptive idiot,? our model opens analytical doors that account for the realities of consumer behavior and helps to resolve many of the conflicts and inconsistencies in trademark law.

I. THE LIKELIHOOD OF CONFUSION AND THE REASONABLY PRUDENT

CONSUMER

The legal touchstone of trademark infringement is a showing of a likelihood of consumer confusion.¹⁶In evaluating the likelihood of confusion, the standard focuses on the ?ordinary? or ?reasonably prudent? consumer.¹⁷

As noted above, the courts have expressed a range of different views as to the mindset of this ?ordinary? or ?reasonably prudent? consumer.¹⁸To some degree, the cases leave room for the impression that courts may simply be

?adjusting their finding of whether the relevant consumer population is sophisticated or unsophisticated to conform to the result they wish to achieve.?¹⁹

Despite this cynical characterization, the courts have long evaluated the likelihood of confusion under a series of circumstantial factors. The seminal federal case under the Lanham Act is Polaroid Corp. v. Polarad Electronics Corp.,²⁰which identified the following eight factors relevant to the likelihood of confusion:

[T]he strength of [the plaintiff's] mark, the degree of similarity between the two marks, the [competitive] proximity of the products [or services], the likelihood that [the plaintiff] will bridge the gap [between two markets], [the existence of] actual confusion, and the reciprocal of defendant's good faith in adopting its own mark, the quality of [the] defendant's product, and the sophistication of the buyers.²¹

Since then, federal courts have offered some variations on these themes, but courts continue to focus primarily on the areas identified by the Second Circuit.²²

The eighth factor, referred to alternatively as the ?consumer's degree of care,?²³or ?consumer sophistication,?²⁴encompasses several considerations that are thought by the courts to affect the attention consumers may pay to their purchases. Under this factor, the courts generally hold that if a consumer can be expected to exercise a high degree of care, she will be less likely to be confused by any connection between a senior and junior trademark.²⁵A sophisticated consumer is expected to act not on ?impulse,? but on the basis of

?a careful consideration of the reliability and dependability of the manufacturer and seller of the product.?²⁶In other words, a sophisticated consumer is one who is apt to spend more time, attention, or care in making a purchasing decision-and who is thus deemed less likely to be confused as to the source or sponsorship of the trademarked products she buys.²⁷Unsophisticated consumers, by contrast, are ?the ignorant, the unthinking[,] and the credulous, who, in making purchases, do not stop to analyze, but are governed by appearance and general impressions.?²⁸The prototypical unsophisticated consumer is the man walking the supermarket aisle who ?undergo[es] . . . an experience not unlike that of hypnosis,?²⁹in which purchases are made impulsively and thoughtlessly.

A key threshold question in the case law is how to distinguish the careful and sophisticated consumer from the unthinking and credulous one. Although the courts have not attempted to articulate any comprehensive theoretical framework for assessing consumer propensities toward care, a few consistent themes have emerged in the case law.³⁰The principal strands of analysis in the case law, which are elaborated and evaluated in some detail below, include the assertion that consumer care or sophistication correlates positively with price,³¹length and complexity of the purchase transaction;³²infrequency of purchase;³³ education, age, gender, and income;³⁴and the notion that professional buyers,³⁵ avid hobbyists,³⁶and (sometimes) women³⁷are more sophisticated.

As explained in further detail below, the case law elaborating these considerations is based on an ad hoc, impressionistic conception of sophistication; the courts have never articulated anything approaching a rigorous, theoretical understanding of consumer care. Yet the perceived degree of sophistication can often be the factor that dictates the degree of protection afforded by law to a trademark holder. Some courts have gone so far as to suggest that a high degree of consumer sophistication in a target market may trump all other factors, virtually eliminating the likelihood of consumer confusion in the case of a professional or highly sophisticated buyer.³⁸Other courts are much more measured in their assessment of the relative significance of this factor, suggesting that its ?import? is ?small indeed? (at least in cases where the junior and senior trademarks are

?identical?).³⁹

In assessing the significance of consumer care or sophistication, at least one court has suggested a distinction between source confusion and confusion as to sponsorship. In King of the Mountain Sports, Inc. v. Chrysler Corp.,⁴⁰the Tenth Circuit asserted that consumer care ?rarely reduces the risk of sponsorship confusion,? given that ?[t]he care with which consumers select a product does not impact the association they may make regarding the sponsorship of an event.?⁴¹The Sixth Circuit has staked out a similar position, holding that consumer care is of ?minimal? significance in dispelling the likelihood of confusion as to affiliation or sponsorship.⁴²

Several courts have also called into question the significance of the consumer sophistication factor in cases involving actionable ?initial interest confusion.?⁴³In Kopman A.S. v. Park Structures, Inc., for example, the Northern District of New York acknowledged that consumers of expensive playground equipment are ?relatively sophisticated,? but held that such

?sophistication cannot protect [a junior trademark user] against initial confusion by consumers.?⁴⁴Thus, although sophisticated consumers are less likely to be confused at the point of sale, the court concluded that sophistication does not obviate the...