MAGICAL THINKING IN TRADEMARK LAW Katya Assaf* ABSTRACT People in all societies have a strong tendency toward magical thinking. This human tendency is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us beautiful, successful, happy, etc. Employing anthropological research, this article suggests that such advertising creates a system of beliefs closely resembling a totemic religion. In this religion, brands perform the role of sacred objects. The article further demonstrates that trademark law supports and encourages the commercial religion of brands. Trademark law initially aims at preventing consumer confusion as to the source of goods. Yet, today famous trademarks are extensively protected against non-confusing associations. This article argues that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and various trademark doctrines, I suggest that famous marks are legally treated as magical, sacred objects. This approach amounts to legally endorsing the religion of brands. I submit that this result is undesirable and probably even unconstitutional in light of the neutrality principle. * Assistant Professor, Law School, the Hebrew University of Jerusalem. I would like to thank Barton Beebe, Leah Chan Grinvald, Mark A. Lemley, Daphna Lewinsohn-Zamir, Ira Pinto, Michal Shur-Ofry, Rebecca Tushnet, Helena Zakowska-Henzler and Eyal Zamir for their invaluable comments, insights and suggestions. 1 INTRODUCTION 1. MAGICAL THINKING AND MODERN ADVERTISING (A) "Magical" Advertising: the Phenomenon (B) "Magical" Advertising at Work 2. THE LEGAL ATTITUDE TOWARD "MAGICAL" ADVERTISING 3. THE PANTHEON OF BRANDS (A) The Idea of the Sacred (B) A Unifying Principle that Binds All Rules Regarding the Sacred Things Together 4. TRADEMARK LAW AND MAGICAL THINKING (A) The Law of Similarity (B) The Law of Contagion (B.1) Positive Contagion (B.2) Negative Contagion 5. SHOULD THE LEGAL SYSTEM PROTECT THE "MAGIC" OF BRANDS? CONCLUSION 2 INTRODUCTION "I can't believe that!" said Alice. "Can't you?" the Queen said in a pitying tone. "Try again: draw a long breath and shut your eyes." Alice laughed. "There's no use trying," she said: "One can't believe impossible things." "I daresay you haven't had much practice," said the Queen. "When I was your age I always did it for half-an- hour a day. Why sometimes I've believed as many as six impossible things before breakfast."1 The idea of rationality is a very basic element in our concept of what it means to be a human being. Alice's remark that "one can't believe impossible things" sounds even somewhat tautological—to say that one considers something impossible is almost the same as saying she can't believe it. The Queen's suggestion appears to be ridiculous at first sight. And yet, nowadays the Queen's seemingly illogical approach increasingly gains followers, while Alice's straightforward view gradually looses its appeal.2 Empirical studies consistently show that the Queen was right: one can believe impossible things, and sometimes may even find it difficult not to believe them. Time after time, psychological research shows that people have a strong tendency toward irrational thought and behavior.3 The legal system largely follows Alice's approach, normally treating individuals as rational beings. As empirical evidence clearly contradicts this approach, scholars increasingly suggest modifying the legal rules in various fields, so that the legal system would reflect the human nature more adequately.4 In this article, I will examine the question of how the legal system treats irrational thinking in the specific context of advertising and brands. 1 LEWIS CARROLL, THROUGH THE LOOKING-GLASS, AND WHAT ALICE FOUND THERE, Chapter V: Wool and Water (1871). 2 See below, Part 1(B). 3 Id. 4 See below, Part 2. 3 The fact that the Queen was right seems to have been known to advertising executives for quite a long time by now. As early as in the 1920s, advertising gradually shifted from communication of dull product information toward attempts to make us believe as many as six impossible things before breakfast.5 Modern advertising commonly pleads us to believe the incredible, for instance that Coca-Cola is "open happiness"6 or that Bayer Aspirin "works wonders."7 More generally, almost every modern commercial suggests, implicitly or explicitly, that purchasing a certain product will bring miraculous results, making us young and beautiful, socially accepted, loved, successful, happy, etc. As several communication scholars have observed, modern advertising is based on a particular kind of irrational thinking known as "magical thinking."8 The tendency toward this kind of thinking is observed across a wide range of cultures, including modern western societies and is considered to be a universal trait of human thought.9 Magical thinking is characterized by the belief that small efforts may bring great results. Advertising largely follows this logic, commonly suggesting that the minimal action of buying a product will bring about grand changes.10 Empirical evidence confirms that people tend to be influenced by advertising, even while being aware of its incredibility.11 Yet, while dealing with claims of misleading advertising, courts essentially adopt Alice's view and assume that one can't believe the impossible.12 They regard the consumer as an entirely rational being, who is 5 See, e.g., Douglas B. Holt, Why Do Brands Cause Trouble? A Dialectical Theory of Consumer Culture and Branding, 29 JOURNAL OF CONSUMER RESEARCH, 80 (2002) ("Through symbols, metaphors, and allegories, brands now [in the 1920s] were magically transformed by advertising to embody psychological and social properties"); BENJAMIN R. BARBER, CONSUMED – HOW MARKETS CORRUPT CHILDREN, INFANTILIZE ADULTS AND SWALLOW CITIZENS WHOLE 175-76 (2007) ("Advertising and marketing in the first instance aimed at providing information about goods, but as consumption grew and products multiplied, the arguments for preferring one trademark over another necessarily grew more manipulative"); Robert G. Bone, Hunting Goodwill: A History of the Concept of Goodwill in Trademark Law, 86 B.U. L. REV. 547, 579-581 (2006) ("the quality of advertisements changed to […] appeal directly to human emotions, needs, and desires"); Steven Wilf, The Making of the Post-War Paradigm in American Intellectual Property Law, 31 COLUMBIA JOURNAL OF LAW & THE ARTS 139, 165-66 (2008). 6 See http://www.thecoca-colacompany.com/presscenter/nr_20090316_open_happiness_single.html. 7 See http://home.suddenlink.net/video/play/157868/channels/classiccommercials. 8 See below, Part 1(A). 9 Id. 10 Id. 11 See below, Part 1(B). 12 See below, Part 2. 4 influenced only by factual statements and is largely immune against advertising hyperbole.13 I will argue that employing magical thinking, advertising attempts to create a system of beliefs similar to a religion. The anthropologist Emile Durkheim defines religion by two criteria: the idea of the sacred and a unifying principle that binds all rules regarding the sacred things together.14 I will demonstrate that modern advertising fulfills both these criteria. Advertising substantially correlates with the first criterion of Durkheim's definition: the idea of the sacred. A typical advertisement tries to convince the consumer that the advertised brand is entirely different from other products. Meanwhile, experiments show that consumers cannot distinguish between different brands of beer, cigarettes, whiskey, soft drinks, etc. in blind tests.15 Some clothing items bearing high-end brand names are manufactured in the same production line with no-names.16 This resembles Durkheim's description of "churinga"—sacred objects in totemic societies. In themselves, churinga are simple objects of wood and stone. They are distinguished from profane things by only one particularity: the totemic mark that is drawn upon them.17 Similarly, advertising encourages us to believe that a brand name makes a great difference. Advertising fulfills the second criterion of Durkheim's definition as well. Although each advertisement convinces us to buy a different product, they all have a unifying principle: the general belief in the magical power of brands. According to this principle, the way to happiness, love and success lies through consumption of branded goods. In totemic religions, each clan has its own totem, which is sacred only to clan members.18 Advertising is built upon a similar principle of multiple deities. Advertising can thus be regarded as a coherent system of beliefs resembling a religion. In this religion, the role of sacred things is performed by brands. In all religions, sacred things are perceived as magical objects. I will argue that while protecting famous brands, trademark law takes into account our tendency toward 13 Id. 14 EMILE DURKHEIM, THE ELEMENTARY FORMS OF THE RELIGIOUS LIFE 37-47 (Joseph Ward Swain, trans., 1969). 15 See infra note 164. 16 See infra note 162. 17 DURKHEIM, supra note 14, at 122. 18 Id. at 102. 5 magical thinking thereby adopting, to some extent, the perception of brands as sacred things. Trademark law is designed to protect trademarks as symbols identifying the source of goods and allowing the consumer to make rational purchasing decisions.19 It traditionally aims to prevent consumer confusion as to the source of goods.20 Yet, with the course of time, the notion of consumer confusion has been considerably broadened.21 Furthermore, the doctrine of dilution provides today additional protection to famous trademarks.22 The combination of the broad consumer confusion test and the doctrine of dilution often results in protecting famous trademarks against uses that merely evoke an association, without causing any meaningful confusion.23 This protection against associations seems to be at odds with the general legal presumption of human rationality: a non-confusing association with a famous brand should not influence a rationally thinking consumer in any way. This article suggests that the protection against associations is based on magical thinking.