Assessing "Genericness": Another View
It may be presumptuous to enter into a debate between two distinguished members of the academic community and two distinguished members of the trademark bar (indeed, the editor and former editor of this fine journal). Nonetheless, if minimum standing be needed to enter the fray, in an article published in 1986, I sought to illustrate how consumer motivation related to various trademark and unfair competition doctrines and to identify legal presumptions made with respect to consumer behavior and competition. Although not a central focus of the article, the relationship of consumer motivation to the issue of genericness was addressed with particular reference to the Anti-Monopoly case.' Moreover, in the light of the 1984 amendments to the Lanham Act legislatively abrogating the consumer motivation test for genericness of Anti-Monopoly, I suggested a simple survey question for determining genericness' and concluded that a Thermos-type survey may have been eliminated by the amendments.'
In any event, my observations were ignored in the debate,' which could lead one to conclude that perhaps these distinguished writers were merely following the admonition of Ralph Waldo Emerson: "Speak the affirmative; emphasize your choice by utter ignoring of all that you reject." " Presuming rejection in the Emersonian sense, I will, in this short comment, reexplore the rationale underlying my proposed survey question and my conclusion that a Thermos-type survey is no longer relevant to the issue of genericness. Before that, however, I would like to comment briefly on the respective positions of Professors Folsom and Teply and Messrs. Swann and Palladino and also to discuss how an important new study" by Professor Landes' and Judge Posner" may bear upon the question of genericness and the present debate."
Samuel Oddi, Assessing "Genericness": Another View, 78 Trademark Reporter 560 (1988).