Advertising and the Public Interest: Legal Protection of Trade Symbols

Abstract

The protect'on of trademarks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trademark is a merchandising shortcut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed. the end is the same-to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trademark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress." Frankfurter, J., in Mishawaka Rubber Voolen. llfg. Co. v. S. S. Kresge Co.'

The US battle against brand marketing: circa 1930-1980

“…For example, in 1948 Yale Law School professor Ralph Brown continued the battle against brand marketing with his now classic article "Advertising and the Public Interest: Legal Protection of Trade Symbols". In this article, he argues that contrary to the belief of many economists that advertising's purpose is to provide information to consumers, that "[m]ost advertising, however, is designed not to inform, but to persuade and influence" (Brown, 1948(Brown, , p. 1169). Brown essentially argues that advertising manipulates and persuades consumers to consistently buy particular brands which, enabled by trademark protection, creates monopolistic competition where brand marketers are able to charge higher prices because they are insulated to some degree from competition by similar products.…”

How, if at All, should the Law of Trademarks Adapt to the Rise of Sensory Marketing?

“…67 On the other hand, one can argue that customers should choose to purchase a product on a rational and thoughtful basis, not because of the wave of emotions contrived by canny marketers. 68 But any other marks including colours and sounds influence our subconscious too. Reducting to the absurdity: should we really annul marriages owing to the fact spouses used aphrodisiacs on the first date?…”

Product Differentiation

“…Chamberlin launched a tradition of scholars largely critical of trademarks as a source of spurious differentiation (see, e.g., Brown, 1948;Scherer, 1970Scherer, , 1976Comanor and Wilson, 1979;Schmalensee, 1979). Contemporary antitrust scholars raised similar concerns (Bain, 1956).…”