Mark Talk

Authors

• Alexandra J. Roberts, University of New Hampshire Franklin Pierce School of Law

Abstract

The article argues that trademark law should evolve to incorporate "mark talk"—consumer discussions and usage of trademarks on social media and online platforms—as a key factor in determining secondary meaning. Traditional methods, such as advertising expenditures and sales data, are critiqued for their limitations in the digital age. The author advocates for updating legal frameworks to reflect contemporary consumer interactions, emphasizing that mark talk provides direct evidence of consumer perception and a mark's distinctiveness. However, courts and the USPTO have been slow to adopt these modern approaches, highlighting a disconnect between legal practices and the realities of digital communication.

Disciplines

Antitrust and Trade Regulation | Entertainment, Arts, and Sports Law | Intellectual Property Law | Law

Recommended Citation

Alexandra J. Roberts, Mark Talk, 39 Cardozo Arts & Ent. L.J. 1001 (2021).
Available at: https://larc.cardozo.yu.edu/cardozoaelj/vol39/iss3/9