This volume emerged from the notion that marketers and lawyers often talk about the same things. They may use different names, but essentially the things they talk about are the same. For example, while marketers talk about brands, lawyers talk about trademarks. However, relatively late in the process of editing this volume, we, as editors, had a somewhat unsettling realization. Throughout the planning and editing process for this book, we had been laboring under, not unrelated, but certainly not identical, views about the domain of marketing and the reach of law. We had no real common understanding of what marketing is, what marketing theory entails, and how the law shapes and governs marketing activities. Such a state of affairs is part of the inevitable risk of bringing together a group of scholars from two distinct disciplines. Fortunately, the realization helped us recognize that both marketing and law are sometimes vessels into which users can pour whatever content they wish. At the start, therefore, we thought it wise to dispense with some misconceptions and offer at least some working definitions of the terms and ideas we encounter in this volume.

Surveys in trademark, trade dress, and false advertising cases often focus on liability. For example, in trademark cases, the focus of survey evidence has often been on whether consumers confuse the two marks. Similarly, survey evidence in false advertising cases has focused on whether the at-issue advertising claim misleads or deceives consumers. Surveys that address these issues of alleged confusion or deception measure consumer “perception,” and the results are often the centerpiece of a plaintiff’s liability arguments. While such questions may be central to cases that seek an injunction or aim to prevent the issuance of a new trademark, they are less relevant in questions of impact or injury.