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 . 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 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 (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 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 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 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 , each clan has its own , 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. This kind of thinking is defined as a projection of cognitive associations into the real world. Therefore, protecting famous brands against associations, trademark law essentially treats them according to the laws of magic. Adopting the laws of magical thinking while protecting famous brands grants these brands an exceptional status in the legal landscape. The legal system indirectly communicates the message that people employ magical thinking in relation to brands, but not in other contexts. Doing so, it essentially supports the efforts of advertising in creating the perception of brands as unusual, magical things. This contributes to the perception of brands as sacred things as well, since the sacred is the primary subject of magical laws in all religions.24 The magical, sacred dimension of brands probably brings some real benefit to the consumer. Just like churinga makes a sick person feel better, gives courage and power, brands may bring a feeling of exclusivity, self-confidence, and even make a person happier. Nevertheless, this article argues that all this does not provide a

19 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 2:5 (4th ed. 2010). 20 Id. at § 2:8. 21 See below, Part 4. 22 Id. 23 For a more general discussion and critique of exclusive rights against associations see Stacey L. Dogan, An Exclusive Right to Evoke, 44 B.C. L. REV. 291 (2003). 24 See infra note 214.

6 sufficient reason for protecting the sacred character of brands. All religious and magical beliefs provide similar benefits and yet, none of them is similarly protected. Protecting the magical of brands, but not of other objects, the legal system provides brands with a privileged position in this sphere. This results in favoring the totemic religion of brands over other religions, which is generally undesirable and may be even regarded as unconstitutional in light of the neutrality principle. Protecting the magical dimension of brands, the legal system leaves the safe grounds of Alice's approach and enters the shaky Queen's reign. The general legal presumption of human rationality may be unrealistic, but it should not be abandoned nevertheless. The legal system should generally restrict the scope of its regulation to the level of rational communication and refrain from reflections about what happens inside our minds. Sometimes special circumstances require deviations from this rule, but the commercial interest of corporations owning famous brands certainly does not. The magical, sacred character of famous brands exists only in the associative network of our minds. No property rights should be granted in this territory. This article proceeds as follows: Part 1 describes the psychological tendency toward magical thinking and explains how modern advertising utilizes this human tendency. It further elaborates on the question how advertising promising impossible, miraculous effects influences consumers despite the fact that consumers do not believe such promises. Part 2 demonstrates that the legal system does not impose any restrictions on advertising applying to irrational, magical thinking. While dealing with magical advertising claims, courts largely ignore the human tendency toward irrational thinking and refuse to provide protection against the influence of such claims. Moreover, courts essentially protect the right of corporations to influence consumers through this kind of advertising. Part 3 employs anthropological research to suggest that magical advertising creates a coherent system of beliefs closely resembling a totemic religion. In this religion, brands of commercial products play the role of sacred objects. Part 4 demonstrates how this perception of brands as sacred objects is adopted in various doctrines of trademark law. Trademark law treats famous trademarks according to the laws of magical thinking thus departing from the presumption of consumer's rationality and implicitly supposing that consumers perceive famous trademarks as magical objects. This incoherent legal approach, which assumes that the consumer is not influenced by magical advertising, but at the same time supposes that she accepts the magical status

7 of brands, is criticized. I further submit that protecting the magical aura of brands, trademark law grants legal support to the commercial religion of brands. Part 5 argues that the current legal situation is undesirable. Although the magical aura of brands may provide consumers with real benefits, this part explains why this fact does not provide a sufficient justification for its protection. Finally, the conclusion submits that trademark law should cease treating trademarks as magical objects and restrict the scope of its protection to the purely informative function of trademarks.

1. MAGICAL THINKING AND MODERN ADVERTISING (A) "Magical" Advertising: the Phenomenon Do you believe in magic? Most people in Western societies would answer this question with a definite "no." Modern society praises rational thought and disdains magic. Yet, empirical experiments demonstrate that educated adults in Europe and in the United States show the same degree of magical beliefs as uneducated people living in "magic tolerant" cultures.25 For instance, in one experiment, British students who all denied that magic could happen in real life were asked to imagine that a woman at dusk on an empty street approached them, introducing herself as a witch and offering to cast a magic spell on the future life of the participant. In one condition, this spell was intended to make the participant rich and happy, while in the other it was intended to make the participant miserable. While in the first condition most participants said they would go for the spell, none agreed to do so in the second condition.26 A consistent body of research shows that in modern western societies magical thinking is commonplace.27 This has led sociologists to conclude that the only

25 See, e.g., Eugene Subbotsky & Graciela Quinteros, Do Cultural Factors Affect Causal beliefs? Rational and Magical Thinking in Britain and Mexico, 93 BRITISH JOURNAL OF 519 (2002): two experiments conducted in Britain and Mexico demonstrated that under a high-risk condition, participants in both samples showed an equal degree of credulity in the effect of magic. 26 Eugene Subbotsky, The Permanence of Mental Objects: Testing Magical Thinking on Perceived and Imaginary , 41 301, 313 et seq. (2005). 27 See, e.g., TANYA M. LUHRMANN, OF THE WITCH’S CRAFT: MAGIC AND IN PRESENT-DAY ENGLAND 4-7 (1989) (arguing that in England several thousand people, usually well-educated middle-class individuals, practice magic); GUSTAV JAHODA, THE PSYCHOLOGY OF 26 (1971) (37 of 51 pedestrians passing a ladder positioned over a pavement preferred to step into the road to avoid walking under it, thereby exposing themselves to danger from traffic); Richard A. Shweder et al., Likeness and Likelihood in Everyday Thought: Magical Thinking in Judgments about Personality, 18 CURRENT 637, 638 (1977) ("Magical thinking does not distinguish one culture from another. […] Most of us have a "savage" mentality much of the time."); Paul Rozin & Carol Nemeroff, The Laws of : a Psychological Analysis of Similarity and Contagion, in CULTURAL PSYCHOLOGY: ESSAYS ON COMPARATIVE HUMAN

8 difference between "primitive" and developed societies is that while the former openly accept magical thinking, the latter deny being influenced by it.28 Magical thinking is considered to be a universal aspect of human thought, resulting from emotional reactions and cognitive-processing limitations of the human mind.29 Several communication scholars have pointed out that modern advertising extensively exploits this natural human tendency toward magical thinking. In her classic book, "Decoding Advertisements," Judith Williamson defines magic as production of results disproportionate to the effort put in.30 She argues that most of modern advertising follows the logic of a magical spell, as it promises us great results—beauty, love, success, security, etc.—from a minimal action: buying the advertised product.31 Products appear in advertising as miraculous containers of ideas, feelings, auras, people and meanings. Advertising suggests that by performing the right spell— choosing the advertised brand—we should be able to release the magical power contained in the product.32 Each advertisement presents the product as the key to the whole scene of happiness or joy it depicts: the little detail which produces great results.33 Similarly, Raymond Williams has described advertising as "a highly organized and professional system of magical inducements and satisfactions, functionally very similar to magical systems in simpler societies."34 Employing the logic of magic, advertising attempts to associate physical products with deepest human needs and desires.35 Elaborating on this idea, Sut Jhally notes that in advertising, products magically transform and bewitch people, bring instant happiness and gratification,

DEVELOPMENT 205-232, 207 (James W. Stigler et al., eds., 1990) ("The laws of magic are generally though to be "primitive" and yet we find many examples of their operation in educated adults in developed countries"). 28 See, e.g., DANIEL LAWRENCE O'KEEFE, STOLEN LIGHTNING: THE SOCIAL THEORY OF MAGIC xv (1982) ("[T]he difference between modern and primitive societies is not that they had magic and we do not. The difference is that that they accepted the magic around them, whereas we deny it"); Eugene Subbotsky, Magical Thinking – or Illusion?, 17 THE PSYCHOLOGIST 336, 338 (2004) (describing experiments in which adult members of western societies who denied the possibility of magic happening in real life, practically showed an equal belief in magic as people in traditional societies). 29 Shweder et al., supra note 27, at 637-38. 30 JUDITH WILLIAMSON, DECODING ADVERTISEMENTS: AND MEANING IN ADVERTISING 141 (1981). 31 Id. at 140 et seq. 32 Id. at 149. 33 Id. at 148. 34 RAYMOND WILLIAMS, PROBLEMS IN MATERIALISM AND CULTURE 40 (1980). 35 Id. at 47.

9 capture the forces of nature, and hold within themselves the essence of important social relationships.36 In fact, all advertising claims that communicate something else than factual product information, exploit our tendency toward irrational, magical thinking to a greater or lesser extent. Consider, for instance, the vague and largely unverifiable claims such as "Bayer works wonders,"37 "There's a smile in every Hershey bar,"38 "Coca-Cola— Open Happiness,"39 "Oh, what a feeling! Toyota."40 Another example is advertising emphasizing ingredients that do nothing to enhance the product performance. Some of these ingredients are simply invented; others are scientific-sounding but essentially valueless; yet others bear no actual relevance to product performance, such as silk in a shampoo.41 More generally, most of modern advertising promises us, implicitly or explicitly, essentially magical results in terms of professional success, social status, self-confidence, love and happiness.42

(B) "Magical" Advertising at Work Do magical advertising claims influence the consumer? When asked, most people say they do not believe any advertising claims.43 People in modern societies are educated to be skeptical toward advertising.44 Theoretically, rationally thinking consumers should be especially skeptical toward advertising which employs non-verifiable claims, claims about ingredients whose utility the consumer cannot evaluate, and most

36 Sut Jhally, Advertising as Religion: The Dialectic of Technology and Magic, in CULTURAL POLITICS IN CONTEMPORARY AMERICA 217-229, 218 (Lan Angus & Sut Jhally eds., 1989). 37 See http://home.suddenlink.net/video/play/157868/channels/classiccommercials. 38 See http://www.ad-mad.co.uk/slogans?page=3. 39 See http://www.thecoca-colacompany.com/presscenter/nr_20090316_open_happiness_single.html. 40 See http://www.ad-mad.co.uk/slogans?page=7. 41 Amity Hartman, FDA's Minimal Regulation of Cosmetics and the Daring Claims of Cosmetic Companies that Cause Consumers Economic Harm, 36 W. ST. U. L. REV. 53, 78-80 (2008) (describing these practices in the field of cosmetics); Gregory S. Carpenter et al., Meaningful Brands from Meaningless Differentiation: The Dependence on Irrelevant Attributes, 31 JOURNAL OF MARKETING RESEARCH 339 (1994) (an empirical study exploring how differentiation on an irrelevant attribute can create a valued difference between brands). 42 MATTHEW P. MCALLISTER, THE COMMERCIALIZATION OF THE AMERICAN CULTURE 59 (1996) ("Advertising constantly implies that values like social acceptance, love, peace of mind, fun and happiness can be acquired with the product"); Katya Assaf, The Dilution of Culture and the Law of Trademarks, 49 IDEA 1, 15 (2008) ("Although the specific content of advertisements may vary, the vast majority of them share a common message: the way to happiness, freedom, love or professional success lies in the consumption of commercial goods and services"). 43 Carl Obermiller et al., Ad : The Consequences of Disbelief, 34 JOURNAL OF ADVERTISING 7 (2005) ("roughly two-thirds of consumers claim they doubt the truthfulness of ads"); Stephen J. Hoch & Young-Won Ha, Consumer Learning: Advertising and the Ambiguity of Product Experience, 13 THE JOURNAL OF CONSUMER RESEARCH 221, 221 (1986) ("A recent national survey found that 60 percent of consumers agreed that "advertising insults my intelligence"). 44 Obermiller et al., id. ("consumers are socialized to be skeptical toward advertising").

10 of all, towards entirely unbelievable claims.45 Yet, the extensive use of magical claims in modern advertising is readily apparent. Moreover, marketing experts advocate using vague and unverifiable claims and avoiding, as much as possible, specific product information in advertising.46 Thus, it seems rather sensible to assume that magical advertising works. Indeed, a large body of research has found that non-factual claims are effective in changing the consumer's attitude toward the advertised product.47 In the past, this phenomenon used to be explained by the consumer's tendency to make inferences that go far beyond the explicit claims made in advertisements.48 For example, the ad "Winter is cold season. Use Listerine every winter day" was understood by most test persons as a claim that Listerine prevents cold.49 Yet, this explanation does not fully clarify the influence of non-factual claims, since most consumers assert that they generally do not believe advertising.50 In addition, more recent studies have

45 Carpenter et al., supra note 41, at 340 ("From the viewpoint of a "rational" information processor, [if] the attribute cannot be evaluated, [it] carries no information as a result, and therefore should be ignored"). 46 See, e.g., Obermiller et al., supra note 43, at 320 ("advertisers may be advised to avoid direct informational approaches […] in favor of emotional appeals"); Holt, supra note 5, at 88 ("Branding gurus today urge companies to forge all-encompassing brand identities, so that consumers experience the magic of the brand at every corporate touchpoint"); DAVID A. AAKER & ERICH JOACHIMSTHALER, BRAND LEADERSHIP 48 (2000) ("A brand essence that draws on meaningful functional benefit […] can provide a significant sustainable advantage, but it can also be limiting in that it tends to put a box around the brand. For this reason, one common brand strategy is to evolve a brand from a product- oriented essence to a more general one. A brand essence that is based on emotional and self-expressive benefits provides a higher-order basis for relationships"). 47 See, e.g., Obermiller et al., id. ("skeptics were more persuaded by emotional than informational ad appeals"); Terence A. Shimp & Ivan Preston, Deceptive and Nondeceptive Consequences of Evaluative Advertising, 45 THE JOURNAL OF MARKETING 22, 27 (1981) ("The results from these studies suggest that beliefs formed from evaluative advertising claims are important, and thus potentially purchase influential"); Janet Hoek & Philip Gendall, An Examination of Puffery’s Effects on Consumers, ANZMAC 2007 Conference Papers 1031, 1036, available at http://conferences.anzmac.org/ANZMAC2007/papers/JHoek_2.pdf ("While our results do not imply that consumers are misled by puffs, they reveal that brands associated with these puffs are significantly more attractive than when they are paired with strictly factual statements"). 48 Shimp & Preston, id. at 26 ("Consumers are inclined to read between the lines, to commit logical fallacies, and in general, to go beyond the manifest content in order to obtain meaning from advertisements"); Hoek & Gendall, id. at 1034 ("respondents interpreted puffs broadly, associated a wide range of attributes with the promoted brand, and extrapolated meaning beyond the claim itself"); Gita Venkataramani, Consumer Involvement and Deception from Implied Advertising Claims¸ 32 JOURNAL OF MARKETING RESEARCH 26, 272 (1995) ("research has shown that consumers make inferences and later believe these to have been asserted in the advertisement"). 49 Claudiu V. Dimofte & Richard F. Yalch, Consumer Responses to False Information: Is Believability Necessary for ? in APPLYING SOCIAL COGNITION TO CONSUMER-FOCUSED STRATEGY 281- 296, 283 (Frank R. Kardes et al., eds., 2005). 50 See supra note 43.

11 demonstrated that consumers identify non-factual claims as less credible.51 Yet, these very studies have also found that the exposure to these claims shifts the consumer's evaluation of the advertised product to be more positive.52 One of the explanations for this phenomenon is related to a debate between René Descartes and Baruch Spinoza on the question of correlation between comprehension and belief. Descartes asserted that comprehension is independent of belief. When a person perceives a claim, she first comprehends it, and then decides whether to accept or reject it.53 Spinoza, on the other hand, argued that the very act of understanding essentially entails the act of acceptance. To understand an idea, a person must accept it, however briefly. She may, of course, reject the idea after having understood it, but she cannot avoid the initial acceptance, which is inherent in the process of comprehension.54 A large body of psychological research has found a clear empirical support for the Spinozan, rather than the Cartesian view.55 That is, while comprehending information, people involuntarily accept it.56 Studies have constantly revealed a "truthfulness bias"—the tendency to accept information as true when it is equally probable that it is false.57 Moreover, it was found that people often fail to reject or ignore assertions they have comprehended, even when explicitly informed that these assertions are false. For example, while being asked to play the role of trial judges, test persons failed to ignore information about the defendant, which was known to be false.58 Similarly, while being presented with assertions about an imaginary foreign language—for

51 Elizabeth Cowley, Processing Exaggerated Advertising Claims, 59 JOURNAL OF BUSINESS RESEARCH 728, 731 (2006) ("Participants were able to identify that the puffed claims were less credible than the factual claims"). 52 Id. at 733 ("Even though consumers can identify a puffed claim as less credible, they still rated the brand more favorably than brands associated with a factual claim"). 53 Daniel T. Gilbert, How Mental Systems Believe, 46 AMERICAN PSYCHOLOGIST 107, 107-9 (1991); Daniel T. Gilbert et al., Unbelieving the Unbelievable: Some Problems in the Rejection of False Information, 59 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 601, 601-2 (1990); Daniel T. Gilbert et al., You Can't Not Believe Everything You Read, 65 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 221, 221-2 (1993). 54 Id. 55 See, e.g., Gilbert, id. at 117 ("Although Descartes's assumptions about the symmetry of acceptance and rejection and the disunity of comprehension and belief have silently dominated scientific thinking about these issues, psychological evidence suggests that Spinoza's hypotheses may have been closer to the truth"); Gilbert et al. (1990), id. at 611 ("the results of the present experiments fit the Spinozan position better than they do the Cartesian, as does a variety of other psychological evidence"); Gilbert et al. (1993), id. at 230 ("We have performed a half dozen experiments […], and each has provided support for Spinoza's retroactive account rather than Descartes's proactive account"). 56 Gilbert, id.; Gilbert et al. (1990), id at 607. 57 Gilbert et al. (1993), supra note 53, at 231. 58 Id. at 223-227.

12 instance, "monishna is a star"—and being told each time if the assertion was true or false, test persons tended to remember false statements as true, but not vice versa.59 Interestingly, this tendency does not change even when the subjects are forewarned about the falseness of the assertions.60 These empirical findings explain many features of human perception, such as believing obviously false rumors,61 the ability to accept the unreality of Spiderman62 and the inability to escape the influence of prejudice and stereotyping.63 In the field of consumer research, the truthfulness bias serves as a persuasive explanation of the effectiveness of non-factual, apparently false or entirely unbelievable advertising claims.64 It is speculated that during the comprehension process, consumers initially perceive such claims as true and find it difficult to reject or ignore them afterwards.65 A similar explanation is offered in terms of the "sleeper effect."66 The sleeper effect occurs when an argument from a discredited source has a greater delayed than immediate effect.67 This happens because the association between the message and its source is lost over time.68 Thus, although the consumer tends to be skeptical toward advertising, its messages are stored in her memory, and over time, their discredited source is forgotten.69 Interestingly, non-supportive experience with the advertised products does not eliminate the psychological effect of advertising, and sometimes even enhances it.70 For example, in one experiment the subjects were exposed to ads claiming that the advertised coffee contained no bitterness and then tasted coffee which was

59 Gilbert et al. (1990), supra note 53, at 602 et seq. 60 Id. at 606-7. 61 Dimofte & Yalch supra note 49, at 281-82, 291. 62 Norman N. Holland, Spider-Man? Sure! The Neuroscience of Suspending Disbelief, 33 INTERDISCIPLINARY SCIENCE REVIEWS 312 (2008). 63 Timothy D. Wilson & Nancy Brekke, Mental Contamination and Mental Correction: Unwanted Influences on Judgments and Evaluations, 116 PSYCHOLOGICAL BULLETIN 117 (1994); Linda Hamilton Krieger, The Content of Our Categories: A Approach to Discrimination and Equal Employment Opportunity, 47 STANFORD LAW REVIEW 1161, 1210 et seq. (1995). 64 Cowley, supra note 51, at 729-33. 65 Id. 66 John C. Maloney, Is Advertising Believability Really Important?, 27 THE JOURNAL OF MARKETING 1, 5 (1963). 67 Ian Maynard Begg et al., Dissociation of Processes in Belief: Source Recollection, Statement Familiarity, and the Illusion of Truth, 121 JOURNAL OF EXPERIMENTAL PSYCHOLOGY 446, 447 (1992). 68 Id. 69 Maloney, supra note 66, at 5. 70 Shimp & Preston, supra note 47, at 27; Jerry C. Olson & Philip A. Dover, Disconfirmation of Consumer Expectations Through Product Trial, 64 JOURNAL OF APPLIED PSYCHOLOGY 179 (1979); John Deighton, The Interaction of Advertising and Evidence, 11 THE JOURNAL OF CONSUMER RESEARCH 763, 766 et seq. (1984).

13 deliberately made bitter.71 Those subjects tended to rate the tasted coffee as less bitter and were more intended to purchase it than persons who were not exposed to the ads.72 In another experiment, the subjects were presented with advertisements of Ford cars, employing the slogan "Quality is Job 1" and then saw extracts from "Consumer Reports" for 16 models of cars.73 The data was voluminous and not especially favorable to Ford. Subjects who saw this data without having been exposed to the ads tended to attribute rather low reliability to Ford's cars. Yet, the very same data strengthened the beliefs about Ford's reliability among subjects who had been previously exposed to the ads.74 This phenomenon is attributed to the tendency known as "cognitive conservatism"— the psychological inclination to seek evidence confirming previous data and disregard evidence contradicting it.75 Exposure to an advertisement induces the consumer to entertain a hypothesis about the advertised product, although its discredited source usually prevents her from initially believing this hypothesis.76 Later, while encountering evidence about the advertised product, the consumer tests the hypothesis, employing heuristics that tend to favor its confirmation.77 As the evidence is interpreted in favor of the hypothesis, the consumer becomes more inclined to purchase the advertised product. Further purchases provide additional evidence for the initial hypothesis and have the tendency to further increase the confidence in its validity.78 Moreover, the tendency to interpret product experience in accord with advertising claims persists even when the consumer is exposed to the ad after having experienced the product. An experiment with diluted orange juice containing some vinegar has demonstrated that advertising can overshadow the consumer's memory and make her

71 Jerry C. Olson & Philip A. Dover, Cognitive Effects of Deceptive Advertising, 15 JOURNAL OF MARKETING RESEARCH 29 (1978). 72 Id. at 33 et seq. 73 Deighton, supra note 70. 74 Id. at 766 et seq. 75 Stephen J. Hoch & John Deighton, Managing What Consumers Learn from Experience 53 THE JOURNAL OF MARKETING 1, 8 et seq. (1989). 76 Id. at 2 et seq.; Deighton, supra note 70, at 763; Hoch & Ha, supra note 43, at 221. 77 Id. 78 VILFREDO PARETO, MANUAL OF POLITICAL ECONOMY Ch. 3, 1, at 103 (Ann S. Schwier trans., Ann S. Schwier & Alfred N. Page eds., 1971); David A. Hoffman, The Best Puffery Article Ever, 91 IOWA L. REV. 1395, 1438 (2006) ("repeated experiences with products appear to increase the distorting effects of puffing speech, making it difficult for consumers to learn and correct for falsehoods").

14 recall a more flavorful juice than she actually tasted.79 Advertising can thus transform consumer's memory.80 These findings are in a sharp contrast with the widely accepted view in economic literature, according to which product experience eliminates the effects of misleading advertising and thus, advertising for a poor quality product lends no long-term advantages.81 Obviously, the more ambiguous the advertising claim, the more the product experience is likely to be interpreted in its favor.82 Non-factual claims—such as "Bayer works wonders"—can hardly be disconfirmed by experience. Because of the tendency toward cognitive conservatism, lack of disconfirming evidence enhances the credibility of such claims even when confirming evidence is lacking, too.83 Therefore, such claims may be more effective than factual claims.84 An additional factor that is believed to increase the influence of even entirely incredible advertising is addressing fundamental human problems, such as weight loss, aging, low income, lack of social acceptability, etc. Since the consumer eagerly seeks solutions to these problems, she may be even more inclined to interpret evidence in favor of the advertising claims and attribute failures to task difficulty rather than to product's inability to live up to these claims.85 Given this data, it is hardly surprising that advertising tends to promise, mostly vaguely and implicitly, that products will have great, miraculous effects, especially in the most important spheres of our lives. Such advertising functions very similarly to magic. Just like advertising recipients, people who believe in magic tend to interpret ambiguous and even disconfirming evidence in accordance with this belief: occasional success is celebrated and remembered, while failures are disregarded and forgotten.86 While product failures are attributed to task difficulty, failures of magic

79 Kathryn A. Braun, Postexperience Advertising Effects on Consumer Memory, 25 THE JOURNAL OF CONSUMER RESEARCH 319, 327 et seq. (Mar., 1999). 80 Id. at 325 ("The statistical analyses confirmed the power of suggestive advertising to transform memories"). 81 Hoch & Deighton, supra note 75, at 1 ("Economic theory […] posits that because product quality is unambiguously revealed in the act of using the product, advertising a poor quality product affords no long-term advantage"). 82 Deighton, supra note 70, at 764 ("evaluative messages may be more prone to confirmation than factual messages"); Hoch & Deighton, id. at 9. 83 Hoch & Deighton, id. 84 Id. 85 Dimofte & Yalch supra note 49, at 282. 86 BRONISLAW MALINOWSKI, MAGIC, SCIENCE AND RELIGION, AND OTHER ESSAYS 62-63, 67 (1948); MARCEL MAUSS, A GENERAL THEORY OF MAGIC 92-3 (Robert Brain, trans., 2001); WALTER BURKERT, CREATION OF THE SACRED 142 (1996).

15 are similarly explained by incorrect performance of the complicated magical rites.87 Furthermore, just like experience with the advertised product enhances the confidence in the advertising claim, performing magical enhances the core belief.88 And finally, just like advertising, magic tends to touch the most important spheres of human lives, where people are especially susceptible to influence.89

2. THE LEGAL ATTITUDE TOWARD "MAGICAL" ADVERTISING Scholars speculate that magical advertising claims are so widespread not only due to their effectiveness, but also because of their immunity from legal liability.90 § 43(a)(B) of the Lanham Act establishes civil liability for false and misleading advertising.91 Yet, judicial practice has developed the "puffing" defense: vague or grossly exaggerated advertising claims that no reasonable customer would rely upon are not actionable under the Lanham Act.92 The puffing defense embraces all hyperbolized, non-realistic and fantastic advertising claims. For instance, the puffing defense succeeded with respect to the unsubstantiated claims that Bayer Aspirin "works wonders,"93 that a cigarette "filters best,"94 that a hair pomade would restore the natural shade or colour95 and that a toothpaste would beautify the smile and brighten the teeth.96 Similarly, an advertisement assuring that candy mints made weight-reduction easy was regarded as mere puffing upon which no charge of misrepresentation can be based.97 In another case, the claim that "Magic Secret" cream caused an "astringent sensation" was deemed non-actionable, since such claims have become "so associated with the familiar exaggerations of cosmetics advertising

87 MALINOWSKI, id. at 65. 88 Richard Sosis, Why Aren’t We All Hutterites? Costly Signaling Theory and Religious Behavior, 14 HUMAN NATURE 91, 97 (2003). 89 MALINOWSKI, supra note 86, 59-61. 90 Shimp & Preston, supra note 47, at 22-24 ("The intensified regulation of advertising during the past decade has apparently diminished the incidence of gross forms of misleading and false advertising. An unintended consequence, however, has been an upsurge in the use of vague and subjective claims and other forms of hyperbole and symbolism in the verbal and nonverbal content of advertising"). 91 15 U.S.C. §1125. 92 See MCCARTHY, supra note 19, at § 27:38. 93 In re Sterling Drug, Inc., 102 F.T.C. 395, Par. 309 (1983). 94 Quinby & Co. v. Funston, 177 N.Y.2d 736 (1958). 95 Herbold Lab., Inc. v. United States, 413 F.2d 342 (9th Cir. 1969). 96 Bristol-Myers Co., 46 F.T.C. 162, 185 (1949), aff'd, 185 F.2d 58 (4th Cir. 1950). 97 Carlay Co. v. F.T.C., 153 F.2d 493, 496 (7th Cir. 1946).

16 that virtually everyone can be presumed to be capable of discounting them as puffery."98 In addition, the puffing defense excludes from the merits of the Lanham Act all claims that can reasonably be understood as expressions of opinion, rather than as statements of fact.99 This approach is based on the words of the Act itself, which restricts only a "false or misleading representation of fact," as well as on the general approach that the First Amendment precludes restrictions on expressions of opinion.100 Ads that were deemed to be non-actionable opinions include a false claim that a videogame system was "the most advanced in the world"101 and an ungrounded speculation that growth and success of a company will continue "well into the future."102 While establishing whether an advertisement contains false factual claims or not, courts apply the standard of "reasonable consumer."103 As the examples above illustrate, this fictive consumer figure is characterized by skeptical attitude toward advertising—the "reasonable consumer" is not easily misled by advertising's hyperbole. This view is based upon a general legal approach that regards individuals as rational beings who scrutinize all information they receive and whose behavior is motivated by pure reason.104 This general approach has recently come under heavy

98 United States v. Article of Drug 47 Shipping Cartons, More or Less, "Helene Curtis Magic Secret," 331 F. Supp. 912, 917 (D.Md. 1971). 99 MCCARTHY, supra note 19, at § 27:38. 100 See, e.g., Boule v. Hutton, 328 F.3d 84, 91-92 (2d Cir. 2003) ("As always with the public expression of opinion, we have been careful not to permit overextension of the Lanham act to intrude on First Amendment values"). See also MCCARTHY, id. at § 27:96. 101 Atari Corp. v. 3DO Co., 31 U.S.P.Q.2d 1636, 1637 (N.D. Cal. 1994). 102 Raab v. General Physics Corp., 4 F.3d 286, 288-91 (4th Cir. 1993). 103 See, e.g., Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 245-46 (9th Cir. 1990) ("'It is beyond the realm of reason to assert, as plaintiffs do, that a reasonable consumer would interpret this as a factual claim upon which he or she could rely"); Summit Technology, Inc. v. High-Line Medical Instruments, Co., 933 F. Supp. 918, 931 (C.D. Cal. 1996) ("the phrase 'perfectly reliable' is […] simply a vague statement [...] incapable of objective verification and not expected to induce reasonable consumer reliance"); Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 148 (2d Cir. 2007) ("the category of non-actionable 'puffery' encompasses visual depictions that, while factually inaccurate, are so grossly exaggerated that no reasonable consumer would rely on them in navigating the marketplace"). 104 This legal assumption of rationality is implicit. Scholars have identified the reliance on this assumption in contexts as diverse as antitrust law: Christopher R. Leslie, Rationality Analysis in Antitrust, 158 U. PA. L. REV. 261, 265-73 (2010); regulations concerning free speech: Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 7; laws regulating investment markets: Susanna Kim Ripken, The Dangers and Drawbacks of the Disclosure Antidote: Toward a More Substantive Approach to Securities Regulation, 58 BAYLOR L. REV. 139, 146-47 (2006); labor law: Franita Tolson, The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary, 33 DEL. J. CORP. L. 347, 391-92 (2008) and criminal law: Andrew E. Lelling, Eliminative Materialism, Neuroscience and the Criminal Law, 141 U. PA. L. REV. 1471, 1473-74 (1993).

17 fire in various areas of law.105 Scholars increasingly question the adequacy of the legal presumption of rationality in the face of extensive empirical research demonstrating that people tend to act irrationally under many circumstances.106 In the field of misleading advertising, the debate on the discrepancy between legal presumptions and reality has started much earlier107—perhaps because the explicit speculations about consumer reactions make this discrepancy especially apparent. Numerous scholars have argued that, in contrast to the "reasonable consumer," the real-life consumer is not immune from advertising and what is considered innocuous puffing by courts actually misleads the consumer or otherwise influences her behavior.108 The puffing defense is arguably based on a false conception of human thinking and is entirely devoid of empirical support.109

105 See, e.g., Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CALIFORNIA LAW REVIEW 1051 (2000); Peter H. Huang, Moody Investing and the Supreme Court: Rethinking the Materiality of Information and the Reasonableness of Investor, 13 SUP. CT. ECON. REV. 99 (2005) (arguing that the legal notion of the reasonable investor should be revised in light of empirical data on moody investing); Cass R. Sunstein, Boundedly Rational Borrowing, 73 U. CHI. L. REV. 249 (2006) (discussing irrational behavior in the context of excessive borrowing and suggesting how the law should treat it); David J. Arkush, Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Process for Law and Legal Theory, 2008 B.Y.U. L. REV. 1275 (2008) (arguing generally that irrational aspects of human behavior should be taken into account by the legal system and discussing specific applications in the law of employment discrimination, consumer protection, and criminal law); Adam S. Zimmerman, Funding Irrationality, 59 DUKE L.J. 1105 (2010) (describing irrational behavior in the context of settlement funds and suggesting how settlement procedures should be adjusted to account for it); Eyal Zamir & Ilana Ritov, Neither Saints Nor Devils: A Behavioral Analysis of Attorneys' Contingent Fees, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1085985 (conducting experiments that reveal a tendency toward irrational behavior in the context of contingent fee arrangements and arguing that legal regulation should take this tendency into account). 106 Id. 107 See, e.g., Shimp & Preston, supra note 47, at 24; Herbert J. Rotfeld & Kim B. Rotzoll, Is Advertising Puffery Believed? 9 JOURNAL OF ADVERTISING 16, 16-19 (1980); Michael A. Kaimins & Lawrence J. Marks, Advertising Puffery: The Impact of Using Two-Sided Claims on Product Attitude and Purchase Intention, 16 JOURNAL OF ADVERTISING 6, 6-7 (1987); Ivan L. Preston, Puffery and Other "Loophole" Claims: How the Law's "Don't Ask, Don't Tell" Policy Condones Fraudulent Falsity in Advertising, 18 J.L. & COM. 49 (1998). 108 See, e.g., Rotfeld & Rotzoll, id. at 19 (an experiment showing that 39-62% of consumers believe various puffing claims); Hoek & Gendall, supra note 47, at 1035 ("Evidence that a puffed claim may enhance a brand’s attractiveness enough to overcome a price differential suggests puffs are more powerful than regulators have surmised.[…] [T]he results support claims that puffery’s effects have been consistently underestimated by regulators"); Cowley, supra note 51, at 728 ("The research presented here demonstrates that although consumers are able to identify an exaggerated claim as less credible, exposure to the puffed claim still shifts the evaluation of the brand to be more positive"). See also Morris B. Holbrook, Beyond Attitude Structure: Toward the Informational Determinants of Attitude, 15 J. MARKETING RES. 545 (1978); Perry Haan & Cal Berkey, A Study of the Believability of the Forms of Puffery, 8 JOURNAL OF MARKETING COMMUNICATIONS 243 (2002). 109 Cowley, id. at 728-29; David G. Yosifon, Resisting Deep Capture: The Commercial Speech Doctrine and Junk-Food Advertising to Children, 39 LOY. L.A. L. REV. 507, 537 (2006).

18 Routinely presuming that the consumer will only be influenced by credible statements of fact, courts implicitly apply Cartesian rather than Spinozian logic.110 Two illustrative examples of Cartesian logic at work are cases in which apparently misleading trade names—"Profile" for a bread that was not low in calories and "Hi-C" for a drink not containing vitamin C—were allowed on the condition that the companies run corrective advertising explaining that the bread was not effective for weight reduction and the drink did not contain vitamin C, respectively.111 According to Cartesian approach, such corrective advertising should entirely eliminate the influence of the misleading trade names. Yet, as discussed above, empirical research has found that people are rather poor at rejecting or ignoring information that is known to be false, which is in accord with Spinozian view.112 Hence, it seems that the required corrective advertising could actually do little to eliminate the confusion caused by the trade names.113 The widespread use of advertising claims legally regarded as non-actionable puffing confirms that advertisers themselves do believe in the efficacy of such claims.114 Commenting on this situation, Ivan Preston noted: "There has never been a better example of people having their cake and eating it too than advertisers using claims on the assumption that they work, while being protected by the law's assumption that they don't."115 Apparently, judges are not wholly unaware of the fact that the figure of the "reasonable consumer" is a fiction. Thus, sometimes even evidence of actual consumer confusion does not prevent the legal conclusion that the advertisement in question is not misleading.116 For example, the Mead Johnson & Co. v. Abbott Laboratories case dealt with an advertisement claiming that the Similac baby formula

110 Cowley, id. 111 ITT Continental Baking Co., 79 F.T.C. 248 (1971) ("Profile" bread); Coca Cola Co., 3 TRADE. REG. REP. (1970 FTC) ("Hi-C" drink). 112 See above, Part 1(B). 113 Dorothy Cohen, Surrogate Indicators and Deception in Advertising, 36 THE JOURNAL OF MARKETING 10, 13 (1972). 114 Yosifon, supra note 109, at 533 ("From the critical realist perspective, one would anticipate that consumers would be susceptible to influence through advertising practices that dispositionist presumptions would lead us to consider innocuous, but which market practices suggest is efficacious"), 535 ("The enormous spending on "puffery" would be an enormous waste of corporate resources if these types of advertisements were as meaningless as the law presumes"); Preston, supra note 107, at 85 ("Advertisers' longstanding use of numerous loophole claims, most in numerous repetitions, over many decades, has made it inconceivable that they share the law's conviction that consumers find the claims meaningless"). 115 Preston, id. at 95. 116 See infra notes 117 and 119.

19 was the "1st Choice of Doctors."117 The court was presented with survey evidence demonstrating that most consumers understood this claim to mean that a substantial majority of doctors recommended Similac and that they did so because of its medical superiority over other brands. None of these implications was true. Yet, the court concluded that the claim was non-actionable and noted generally that surveys cannot be employed to determine the meaning of words. The meaning of words should be established according to dictionaries, and not to "the first impressions of people on the street."118 Similarly, in American Italian Pasta v. New World Pasta, survey evidence was brought to demonstrate that a substantial number of consumers understood the slogan "Americans' Favorite Pasta" as implying that the advertised brand was number-one, or at least national brand.119 Again, this was not true. Relying on Mead Johnson, the court accepted the puffing defense. Since the dictionary meaning of the word "favorite" was subjective and vague, the statement could not be regarded as a factual claim: "the Lanham Act protects against misleading and false statements of fact, not misunderstood statements," it concluded.120 These cases reveal that the high standard by the figure of the "reasonable consumer" is not a result of simple misunderstanding of the purchasing public. Rather, it's a policy choice made by the legal system: courts, in a way, deliberately prefer the freedom of commercial speech to the consumer's interest not to be misled.121 Thus, in American Italian Pasta, the court noted: "Defining puffery broadly provides advertisers and manufacturers considerable leeway to craft their statements […], ensuring vigorous competition, and protecting legitimate commercial speech. […] To allow a consumer survey to determine a claim's benchmark would [result in] unpredictability [and] could chill commercial speech[.]"122 A similar observation was made in Mead Johnson.123 Legal commentators, too, are often concerned that too

117 201 F.3d 883 (7th Cir. 2000). 118 Id. at 886. 119 371 F.3d 387 (8th Cir. 2004). 120 Id. at 394. 121 MCCARTHY, supra note 19, at § 27:38. 122 371 F.3d at 391. 123 201 F.3d at 886 ("especially because consumers' sketchy understanding of science means that survey results are apt to present firms with unrealistic demands for verification").

20 narrow interpretation of the puffing defense would result in an excessive restriction on the freedom of commercial speech.124 In a sense, puffing is regarded as an immanent right of corporations. Two cases brought before the Federal Trade Commission (FTC) illustrate this point. In the first case, the Firestone Company asked the FTC to amend its prior order, preventing the company from using unsupported safety claims, so that the order would not extend to puffing claims.125 The order was modified as requested, so that the company could use the unsubstantiated claim "quality you can trust."126 In a similar case, C&H Sugar complained that an FTC order preventing it from making unsubstantiated claims of superiority covered puffing, such as "I love C&H the best" or "C&H tastes best."127 Modifying the order, the FTC made an interesting observation: "the homogeneous nature of the product means that there are few truthful, nondeceptive comparisons that can be made among competing products. In order to promote their brands, sugar refiners must rely on […] subjective endorsement claims. […] [T]he order as currently structured inhibits competition in the granulated sugar industry."128 This view gained support in the Uniform Commercial Code (UCC). A certain proposal to amend the UCC made in the 1990s was perceived by the advertising industry as a threat to the puffing defense.129 Many advertising executives sent letters urging the UCC Commission not to accept this amendment, as the elimination of the puffing defense would diminish the ability of many companies to compete.130 According to these letters, thousands of products are not able to compete on factual grounds, because they are essentially the same: the only way to separate different brands one from another under these circumstances is by the appeal of advertising.131 In response to these concerns, the Commission revised its proposal and codified the puffing defense into the UCC.132

124 See, e.g., Sarah Samuelson, True or False: The Expanding "False by Necessary Implication" Doctrine in Lanham Act False Advertising, and How a Revitalized Puffery Defense Can Solve This Problem, 30 CARDOZO L. REV. 317 (2008). 125 Clarification of Three Provisions of a 1972 Order Concerning Safety Claims for its Tires [Firestone Tire and Rubber Company, D-8818], 112 F.T.C. 609 (1989). 126 Id. at 610. 127 C&H Sugar Co., 119 F.T.C. 39 (1995). 128 Id. at 46-47. 129 Preston, supra note 107, at 66-86; MCCARTHY, supra note 19, at § 27:38. 130 Preston, id. at 85-86. 131 Id. 132 MCCARTHY, supra note 19, at § 27:38.

21 All this clearly indicates that the legal system does not overlook the impact of subjective, exaggerated and non-factual advertising claims falling into the all- permissive area of puffing. Rather, the opposite is true: puffing is actually recognized as the advertiser's right to influence the consumer without providing her with any information. This right enables the advertiser, inter alia, to make the consumer perceive physically indistinguishable products differently. In other words, puffing is a legally recognized privilege of advertisers to exploit the human tendency toward irrational and magical thinking.

3. THE PANTHEON OF BRANDS As discussed above, modern advertising often appeals to "magical thinking."133 It can be thus said that advertising induces us to believe in magic. In this part I will demonstrate that advertising does even more than that: it creates a system of beliefs rather similar to religion—a religion revolving around brands of consumer goods. Although are closely related phenomena, they are not entirely identical.134 Therefore, the argument that advertising creates religious-like beliefs deserves a separate discussion. The parallels between modern advertising and religion have been repeatedly observed in the literature. Thus, scholars have noted the similarity between shopping malls and cathedrals,135 pointed out the common elements between successful brands and religion136 and revealed the sacred dimensions of consumption experience,137 as well as the fetishistic character of consumer culture.138 They have shown how advertising adopts religious symbols and mythological motives,139 described the process of

133 See above, Part 1(A). 134 DURKHEIM, supra note 14, at 42-44; MALINOWSKI, supra note 86, at 67-70; MAUSS, supra note 86, at 25-30, 56-69. 135 JOHN F. KAVANAUGH, FOLLOWING CHRIST IN A CONSUMER SOCIETY: THE SPIRITUALITY OF CULTURAL RESISTANCE 13 (2006); Russell W. Belk, Materialism and the Making of the Modern American Christmas, in CONSUMPTION: CRITICAL CONCEPTS IN THE SOCIAL SCIENCES 319-344, 334 (Daniel Miller ed., 2001). 136 MARTIN LINDSTROM, BUY-OLOGY: TRUTH AND LIES ABOUT WHY WE BUY 112-121 (2008). 137 Russell W. Belk et al., The Sacred and the Profane in Consumer Behavior: Theodicy on the Odyssey, 16 THE JOURNAL OF CONSUMER RESEARCH 1, 2 et seq. (1989) ("Consumption can become a vehicle of transcendent experience; that is, consumer behavior exhibits certain aspects of the sacred"). 138 WILLIAMSON, supra note 30, at 150-51 ("Life and meaning are attached to objects that might seem worthless in themselves. In all societies but ours we call this fetishism"); Jhally, supra note 36, at 224- 27 (describing in detail the similarities between fetishistic religions and the world created by advertising). 139 Doru Pop, Holy Advertising, 12 ECHINOX NOTEBOOKS 369, 370 et seq. (2007), available at www.ceeol.com (discussing how advertising employs the most important figures and symbols of the Christian religion); ROLAND MARCHAND, ADVERTISING THE AMERICAN DREAM 282 (1985) (describing

22 consumption taking the place of religious and spiritual institutions,140 and, finally, concluded that advertising and consumption have become "the very religion of late capitalism."141 Echoing these observations, modern marketing literature advises how advertising should create "brand cults,"142 "brand rituals,"143 "brand myths,"144 and "brand religion."145 Yet, no study so far has seriously inquired whether advertising fulfills any anthropological definition of religion, as will be done here. Anthropological literature offers a plethora of definitions of religion146 and modern advertising can probably fulfill most of them, if not all. Yet, a comprehensive examination of this question lies outside the scope of the current study. In the following analysis, I will concentrate on the "successful, though largely unconscious adaptation of religious imagery to the advertising tableaux"); See also ROLAND BARTHES, MYTHOLOGIES (1970) (explaining how motives from classical myths are reassigned to advertising symbols). 140 Pop, id. ("brand loyalty substituted the faithfulness demanded by the traditional Church and this new God becomes a more and more demanding and jealous deity"); Jhally, supra note 36, at 222-23 (arguing that starting in the 1920s, advertising has occupied the place in inspiration that religion did several hundred years ago); Albert M. Muniz & Thomas C. O’Guinn, Brand Community, 27 JOURNAL OF CONSUMER RESEARCH 412, 428 (2001) ("If it is true that modernity has brought with it... 'the disenchantment of the world,' is it possible that community could coalesce around brands of things, to satisfy […] a yearning for a 'reconstructed and re-mystified community'? We believe so"); DOUGLAS ATKIN, THE CULTING OF BRANDS: TURN YOUR CUSTOMERS INTO TRUE BELIEVERS 201-2 (2004) ("We’ve reached a unique intersection in society that favors marketers. On one side, established [social, religious and political] institutions are proving to be increasingly inadequate sources of meaning and community. On the other, [m]arketing is reaching its maturity in terms of shrewdness and artfulness"). 141 Pop, id. at 369. See also id at 372 ("The communication industries are putting forward illusions of the profound emotional space where shopping takes the place of praying and the icons of technologies substitute the idols of the old Gods"); Jhally, id. at 225 ("[Advertising] helps us to understand the world and our place in it, and it accomplishes this through integrating people and things within a magical and sphere. If this function were attributed to an institution in non-capitalist society, we would have no trouble seeing it for what is was - religion"); Sut Jhally, Image-Based Culture: Advertising and Popular Culture, in GENDER, RACE AND CLASS IN MEDIA, 77-87, 80 (Gail Dines & Jean M. Humez eds., 1995) ("Some commentators have even described advertising as a part of a new religious system in which people construct their identities through commodities, and in which commodities are part of a supernatural magical world where anything is possible with the purchase of a product"). 142 ATKIN, supra note 140, at 106-110. 143 LINDSTROM, supra note 136, at 89-100. 144 DOUGLAS B. HOLT, HOW BRANDS BECOME ICONS: THE PRINCIPLES OF CULTURAL BRANDING 8 et seq. (2004). 145 JESPER KUNDE, CORPORATE RELIGION 47-95 (2000). 146 For instance, Tylor defined religion as a belief in spiritual beings: EDWARD B. TYLOR, PRIMITIVE CULTURE 424 (1874); Geertz defined religion as "a system of symbols which act to establish powerful, pervasive and long-lasting moods and motivations in men by formulating conceptions of a general order of existence and clothing these conceptions with an aura of factuality such that the moods and motivations seem uniquely realistic": Clifford Geertz, Religion as a Cultural System, in ANTHROPOLOGICAL APPROACHES TO THE STUDY OF RELIGION 1-46, 4 (Michael Banton ed., 1996); Réville defined religion as "the determination of human life by the sentiment of a bond uniting the human mind to that mysterious mind whose domination of the world and itself it recognizes, and to whom it delights in feeling itself united": ALBERT RÉVILLE, PROLEGOMENA TO THE HISTORY OF RELIGIONS 25 (A.S. Squire, trans., 1884); James defined religion as the belief that there is an unseen order, and that our supreme good lies in harmoniously adjusting ourselves thereto: WILLIAM JAMES, THE VARIETIES OF RELIGIOUS EXPERIENCE: A STUDY IN HUMAN NATURE 53 (1902).

23 the classical Emile Durkheim's definition. Durkheim defines religion by two criteria: (A) the idea of the sacred and (B) a unifying principle that binds all rules regarding the sacred things together.147 I will now demonstrate that much of modern advertising fulfills both these criteria.

(A) The Idea of the Sacred Durkheim has argued that all known religions present one common characteristic: they presuppose a classification of things into two classes or opposed groups: sacred and profane.148 Sacred things are unique in their very nature, for they have virtues and powers absent in the domain of the profane.149 Usually, the efficacy of these powers is so imperfectly determined that the believer is able to form only a very vague notion of it.150 In the totemic societies Durkheim has studied, sacred things are believed to bring success in fishing and hunting, to heal, to ensure reproduction, etc.151 Durkheim observes that sacred things are usually unimpressive in themselves. Nothing in their physical characteristics reveals their extraordinary nature.152 Any object can be sacred—a piece of wood, a rock, a tree, an animal.153 It is the human consciousness that makes the difference between the sacred and the profane: the sacred dimension is added to the physical world by the religious imagination.154 For instance, "churinga"—a type of sacred objects in totemic societies—are simple pieces of wood or bits of stone.155 They are distinguished from profane things by only one particularity: the totemic mark, which is drawn or engraved upon them.156 Yet, churinga are considered highly sacred, exchanged for high price and believed to heal, give courage, force, perseverance, etc.157 Durkheim concludes that in the case of churinga, the sacred character is bestowed upon the physical objects by the totemic

147 DURKHEIM, supra note 14, at 37-47. 148 Id. at 37. 149 Id. at 37-39. 150 Id. at 200. 151 Id. at 121, 204. 152 Id. at 212, 205, 322-23. 153 Id. at 37. 154 Id. at 322-24, 345-46. 155 Id. at 122. 156 Id. 157 Id. at 121, 204.

24 mark.158 It is this mark alone that attracts religious sentiments to these objects and inspires belief in their supernatural powers.159 For its large part, modern advertising substantially correlates with Durkheim's idea of the sacred. As described above, the common advertising rhetoric tries to convince us, explicitly or implicitly, that choosing the right brand will bring us success, social acceptance, love, health, beauty, happiness, etc.160 This is very similar to functions ascribed to churinga in totemic societies. Advertising employs the fantastic logic of the sacred, according to which trivial physical objects can be powerful means of achieving highest human aspirations. Today, in many market areas, products have little material differences.161 Clothing items bearing high-end brand names are frequently manufactured in the same production line with cheaper brands and unbranded items.162 Private label products are significantly cheaper and often essentially identical to their branded counterparts.163 Experiments show that in a blind test, consumers are unable to distinguish between different brands of beer, cigarettes, whiskey, soft drinks, etc.164 It

158 Id. at 122-26. 159 Id. 160 See above, Part 1(A). 161 BARBER, supra note 5, at 179; JEAN BAUDRILLARD, THE CONSUMER SOCIETY: MYTHS AND STRUCTURES 87-90 (1998); ATKIN, supra note 140, at 106- xii, 96 (2004); KEVIN ROBERTS, LOVEMARKS: THE FUTURE BEYOND BRANDS 29-30 (2006). 162 LINDSTROM, supra note 136, at 122 ("Once, when visiting a factory in China, I discovered that the factory tables were packed with one brand of clothing in the morning, another brand in the afternoon. The only difference: the cotton logo, which, as a finishing touch. Workers placed carefully on each shirt, sweater, and hoodie, creating the sole, and staggering, price differential between branded shirts and unbranded ones"). 163 See, e.g., Allan D. Shocker et al., Challenges and Opportunities Facing Brand Management: An Introduction to the Special on Brand Management, 31 JOURNAL OF MARKETING RESEARCH 149, 154 (1994) (Tylenol […] owns over 70% of the acetaminophen market, despite other chemically identical products selling for considerably less"); Robert Barsky et al., What Can the Price Gap between Branded and Private Label Products Tell Us about Markups?, a paper presented at the NBER Conference on Research in Income and Wealth in September 2000, available at http://www.economics.emory.edu/Working_Papers/wp/levy_00_15_paper.pdf, 2 ("private label products are more or less physically identical to nationally branded products, but the branded product commands a higher market price"); Victor J. Tremblay & Stephen Polasky, Advertising with Subjective Horizontal and Vertical Product Differentiation, 20 REVIEW OF INDUSTRIAL ORGANIZATION 253, 259 (2002) ("the Bayer brand coexists with a number of private label or generic suppliers that sell chemically identical products. […]Bayer’s regular aspirin sells for over twice that of its generic counterparts[.] … [T]he nationally advertised Clorox brand coexists with many private labels. These products are chemically identical […], yet Clorox uses advertising to persuade consumers of its superior quality which enables it to command a market share of over 50 percent and a price premium of between 13 and 67 percent in various regional markets"). 164 Ralph I. Allison & Kenneth P. Uhl, Influence of Beer Brand Identification on Taste Perception, 1 JOURNAL OF MARKETING RESEARCH 36, 39 (1964) ("Participants, in general, did not appear to be able to discern the taste differences among the various beer brands"); Stephen J. D. Chadwick & Hugh A. F. Dudley, Can Malt Whisky Be Discriminated from Blended Whisky?, 287 BRITISH MEDICAL JOURNAL 1912, 1913 (1983) ("malt cannot be distinguished from blended whisky and […] experience does not

25 has already become common wisdom in marketing literature that in such competitive environment, the only way to distinguish one's product from its rivals is to create emotional attachment to its brand.165 A brand should embed values and ideals; it should add a powerful symbolic dimension to the physical product.166 This dimension should induce the consumer to prefer the products of this brand to largely indistinguishable alternatives and allow the brand's owner to charge premium prices.167 As discussed above, this commercial practice enjoys legal support: one of the objectives of the puffing defense is to enable differentiation between largely homogeneous products through advertising appeals.168 Brands that differentiate largely identical products resonate with the idea of the sacred, as described by Durkheim. Just like the totemic mark distinguishes churinga from similar pieces of wood and stone, a strong brand marks out goods from physically similar counterparts. Just like churinga, branded goods are valued much higher than goods on which the brand name does not appear. Just like the totemic mark is the element that adds the sacred character to the physical object, the trademark is the element that adds a symbolic dimension to the physical product. And

alter powers of discrimination"); OTTO BLUME ET AL., WERBUNG FÜR MARKENARTIKEL 39-40 (1976) (experiments showing that consumers are unable to identify their favorite brands of beer and cigarettes in blind tests); LINDSTROM, supra note 136, at 26 (when presented with soft drinks with their brands, 75% of the respondents preferred Coke over Pepsi; in a blind test, most of the respondents preferred Pepsi). 165 See, e.g., Craig J. Thompson et al., Emotional Branding and the Strategic Value of the Doppelgänger Brand Image, 70 JOURNAL OF MARKETING, 50, 51 (2006) ("Thus, the strategic objective of emotional branding is to forge strong and meaningful affective bonds with consumers"); MARC GOBÉ, EMOTIONAL BRANDING xiv-xv, xxvii-xxxii (2001) ("Emotional Branding is the conduit by which people connect subliminally with companies and their products in an emotionally profound way"); DARYL TRAVIS, EMOTIONAL BRANDING 53-54 (2000) ("A transaction is like a one-night stand, and it’s never going to be as satisfying or rewarding as falling in love. A transaction makes the cash register ring once. A relationship makes it ring again and again"); ROBERTS, supra note 161, at 42-58 ("I became convinced that only an emotion like Love could power the next evolution of branding"). 166 See, e.g., Holt, supra note 5, at 80 ("One of the first branding gurus, Earnest Elmo Calkins, developed the idea that manufacturers should strive to position their brands as concrete expressions of valued social and moral ideals"); Thompson et al., id. at 51 ("brand strategists should focus on telling stories that inspire and captivate consumers. These stories must demonstrate a genuine understanding of consumers’ lifestyles, dreams, and goals and compellingly represent how the brand can enrich their lives"). 167 ATKIN supra note 140, at 109-110 (arguing that brands can be "an opportunity to charge a premium without relying on the vicissitudes of product superiority"); DAVID A. AAKER & ERICH JOACHIMSTHALER, BRAND LEADERSHIP 14-16 (2000) (arguing that brands provide an alternative to price competition); Robert N. Klieger, Trademark Dilution: The Whittling Away of the Rational Basis for Trademark Protection, 58 U. PITT. L. REV. 789, 858-59 (1997) ("Image-based product differentiation enables one company to raise the price of its products relative to competitors without losing market share, and products that are virtually indistinguishable from one another sell for very different prices on the value of the brand persona"). 168 See above, Part 2.

26 finally, just like the totem inspires religious sentiments, a successful brand should inspire strong emotional responses. Another point of similarity relates to the authenticity of the forces persistent in sacred objects and branded products. As Durkheim notes, the religious forces are delirious, but nevertheless real.169 Eating a forbidden animal makes a person feel sick and may even cause death.170 A man wearing churinga feels stronger and he is stronger; he may venture great missions and accomplish them due to his confidence in his protector.171 His enemy, on the other hand, sometimes looses self-assurance seeing churinga and is easily defeated.172 Much in the same way, the powers bestowed upon brands by advertising may be real. People may indeed feel more confident, more socially accepted and even happier while purchasing or using products of a certain brand. If the use of the product is conspicuous, other people may also react to socially accepted signals—for instance, treat with more respect a person wearing a Versace suit and a Rolex watch. One special feature of the sacred is its ability to inspire sentiments that function as a verification of faith.173 For example, the sentiments inspired in a devoted Christian by a cross or the phrase "Jesus Christ is the son of God" provide a kind of proof of the truthfulness of her belief.174 This type of verification is non-falsifiable, a fact that makes the religious belief very stable.175 Similarly, advertising attempts to create non-falsifiable emotional experiences referring to brands—consider, for instance, the slogans "There's a smile in every Hershey bar," "Coca-Cola—Open Happiness" and "Oh, what a feeling! Toyota." As noted above, advertising may indeed transform product experience, making it more pleasurable than it would otherwise have been or even than it has actually been.176 For example, it is widely known that while in a blind test most people prefer Pepsi to Coke, the same people tasting the drinks with their brands usually prefer Coke.177 A

169 DURKHEIM, supra note 14, at 226-28. 170 Id. at 228. 171 Id. at 159, 228. 172 Id. at 121. 173 Richard Sosis & Eric R. Bressler, Cooperation and Commune Longevity: A Test of the Costly Signaling Theory of Religion, 37 CROSS-CULTURAL RESEARCH, 211, 228 (2003). 174 Id. 175 Id. 176 See above, Part 1(B). 177 See, e.g., LINDSTROM, supra note 136, at 26 (when presented with soft drinks with their brands, 75% of the respondents preferred Coke over Pepsi; in a blind test, most of the respondents preferred Pepsi); Sanjoy Ghose & Oded Lowengart, Taste Tests: Impacts of Consumer Perceptions and Preferences on

27 brain-scan study has revealed that while the blind test stimulates only the brain region responsible for taste, brands stimulate the region responsible for higher thinking.178 The emotions inspired by the Coke brand override the test preference for Pepsi.179 Similarly, empirical research constantly demonstrates that cigarettes and coffee, whiskey and bear, soda and juice apparently taste much better when the right trademark appears on them.180 In the same vein, one experiment has shown that Tiffany's boxes, commonly associated with love, engagement and marriage, caused women's heart rates to go up 20%.181 Feelings generated by brands are thus entirely real. Just like religious sentiments, these feelings can strengthen the beliefs created by advertising. Moreover, one relatively recent study has found that when devoted consumers viewed their favorite brands—such as iPod, Guinness, Harley Davidson and Ferrari—their brains registered exactly the same patterns of activity as they did when these persons were presented with religious images, such as a cross, rosary beads, the Virgin Mary and the Bible.182 These results indicate that powerful brands and religious symbols inspire largely identical emotions.183 Interestingly, even favorite sport stars do not generate emotional responses similar to religious sentiments.184 Therefore, the study has concluded, our emotional engagement with brands is rather unique in the strong parallels it shares with religious feelings.185

(B) A Unifying Principle that Binds All Rules Regarding the Sacred Things Together The totemic societies (tribes) described by Durkheim and other anthropologists are divided into clans, whereas each clan has its own totem and practices its own cults and rites.186 Yet, according to Durkheim, totemism is a single religion and not a group

Brand Positioning Strategies, 10 J. TARGETING, MEASUREMENT & ANALYSIS FOR MARKETING 26, 30 (2001) ("In a blind taste test, Diet Pepsi was preferred by 51 per cent of the subjects while Diet Coke was preferred by 44 per cent. In contrast, a branded taste test resulted in Diet Pepsi being preferred by 23 per cent with Diet Coke being preferred by 65 per cent"). 178 LINDSTROM, id. 179 Id. 180 See supra note 164; Olson & Dover, supra note 71; Braun, supra note 79 (describing, respectively, the experiment with the bitter coffee and the experiment with the diluted juice, which have been discussed above in Part 1(B)). 181 LINDSTROM, supra note 136, at 154. 182 Id. at 123-26. 183 Id. at 124-25. 184 Id. 185 Id. at 126. 186 DURKHEIM, supra note 14, at 102-3, 154-55; CLAUDE LÉVI-STRAUSS, TOTEMISM 18-20 (Rodney Needman, trans., 1963).

28 of isolated cults.187 Members of one clan do not regard the beliefs of neighboring clans with the skepticism and hostility, as one regards a foreign religion.188 Just as they believe that their totem protects their own clan, they also believe that of the neighboring clans protect these clans.189 Therefore, the whole totemic tribe actually shares the same beliefs: although each cult has its autonomy, together they form a complex system, just like the Greek polytheism.190 The similarity between modern advertising and totemic religions was pointed out by Judith Williamson and Sut Jhally.191 Advertising creates brands as group identifiers; its logic divides people into clans according to their consumption habits.192 In advertising, just like in totemism, people are identified through the brands they consume: Coke drinkers are different from Pepsi drinkers; Chanel No. 5 identifies you as a different person from someone who uses Babe.193 Thus, advertising, just like totemism, creates a polytheistic universe, a world dominated by a sheer pantheon of powerful forces residing in products of consumption.194 Empirical research suggests that advertisers were not unsuccessful in their mission of creating brand totemism: there is evidence that people sometimes identify themselves and perceive the identity of others through brands.195 Several very powerful brands, such as Apple Macintosh, Saab, Bronco and Harley-Davidson, were even found to serve as objects of cults and rituals; their followers form "brand communities."196 As Williamson notes, consumer totemism differs from tribal totemism at one important point: in consumer totemism, unlike in tribal totemism, different consumer

187 DURKHEIM, id. at 154-55. 188 Id. 189 Id. 190 Id. at 156. 191 WILLIAMSON, supra note 30, at 45-49; Jhally, supra note 36, at 224. 192 WILLIAMSON, id.; Jhally, id. 193 WILLIAMSON, id. at 45-46. 194 Jhally, supra note 36, at 227 (citing Martin Esslin). 195 Muniz & O’Guinn, supra note 140, at 420, 423 (Macintosh users feel superior to the 'IBM herd'); Belk et al., supra note 137, at 15 (Chevrolet devotees characterize themselves as 'Chevy people,' as opposed to 'Ford people'); Ronald W. Pimentel & Kristy E. Reynolds, A Model for Consumer Devotion: Affective Commitment with Proactive Sustaining Behaviors, 5 ACADEMY OF MARKETING SCIENCE REVIEW 1, 24 (2004), available at: http://www.amsreview.org/articles/pimentel05-2004.pdf ("consumers report that their own values are similar to the perceived values of the brand"). 196 Muniz & O’Guinn, id. (describing the brand communities centered on Ford Bronco, Macintosh, and Saab); Abert Muñiz & Hope Jensen Schau, Religiosity in the Abandoned Apple Newton Brand Community, 31 JOURNAL OF CONSUMER RESEARCH 737 (2005); James H. McAlexander et al., Building Brand Community, 66 JOURNAL OF MARKETING 38 (2002) (describing Jeep and Harley Davidson brand communities); Balmer, Corporate Brand Cultures and Communities, in BRAND CULTURE 34, 39 (Jonathan E. Schroeder & Miriam Salzer-Mörling eds., 2006) (asserting that brand communities are similar to faith groups); Søren Askegaard, Brands as a Global Ideoscape, in BRAND CULTURE id. at 91, 94-96 (discussing brand communities and noting that brands are taking on religious dimensions).

29 "clans" inevitably overlap, since we consume so many products.197 It is possible, for example, for a single person to belong at the same time to the Coke clan and to the Macintosh clan. Another noteworthy difference is that, in contrary to consumer society, clan membership in totemic societies is involuntary and is usually determined by birth.198 Yet, one form of traditional totemism resembles modern consumer totemism very closely: the individual totem.199 The individual totem is acquired by a deliberate act and is considered a benefit rather than a necessity.200 A person may acquire several individual totems, and may deliberately replace any of them if it does not fulfill its function properly.201 Interestingly, the faith in individual totems is stronger than the belief in the totem of the clan. Durkheim gives an example of a man who has abandoned totemism and was baptized, but his faith in the efficacy of the individual totem remained unshaken.202 Moreover, traces of individual totemism are still observable in many European countries.203 Individual totemism resembles consumer totemism in that both can peacefully coexist with other religions.204 It is important to note that individual totemism, despite its more liberal form, fulfills Durkheim's definition of religion: this is a and general belief in the supernatural powers of totems and their ability to protect, grant power, bring success, etc.205 Very similarly, advertising, as a whole system, promotes the perception according to which branded consumer goods have the power to bring us success, social acceptability, love, happiness, etc.206 Hence, advertising can also be regarded as a system unified by a single principle, thus fulfilling the second criterion of Durkheim's definition of religion. This religion of consumer totemism has been promoted by advertising for several decades by now207 and has apparently taken roots in our society. Empirical evidence

197 WILLIAMSON, supra note 30, at 48. 198 DURKHEIM, supra note 14, at 161-62. 199 Id. at 157-65. 200 Id. at 161-63. 201 Id. at 163. 202 Id. 203 Id. at 164-65. 204 Pop, supra note 139, at 369 (The new belief system that advertising is built upon and is developing is not one that constructed against any of the "old religions"). 205 DURKHEIM, supra note 14, at 424-25. 206 See above, Part 1(A), especially supra note 42. 207 According to Sut Jhally, advertising entered the "stage of totemism" in the 1960s: Jhally, supra note 36, at 224.

30 demonstrates that people attribute great importance to consumption and associate it with pleasure, freedom, self-reward and happiness.208 It is interesting to note that while in traditional totemic societies pleasure is not one of the effects expected from sacred things, it seems to play a rather central role in consumer totemism. Churinga is believed to bring courage, power, success, etc.—and advertising ascribes similar functions to brands. Yet, advertising also convinces us very frequently that branded products are able to bring pleasurable experiences: consider, for instance, "Oh, what a feeling! Toyota" or "There's a smile in every Hershey bar." And indeed, as discussed above, brands can transform product experience, making it more pleasurable.209 Churinga fulfills no similar functions. This discrepancy between brands and churinga is noteworthy, since it reveals a fundamental difference in the value system of the two societies. Consumer society is much focused on the satisfaction of individual desires; it is built around "the cult of the self."210 As Jean Baudrillard has observed, today pleasure and enjoyment are essentially regarded as an important mission every person must accomplish: "The consumer is haunted by a fear of missing something—some experience, some form of enjoyment—[…] it is the "fun morality," the imperative to enjoy oneself, to exploit one's full potential for thrills, pleasure and gratification."211 Thus, branded products, unlike churinga, are endowed with pleasure-bringing function because in modern consumer society, unlike in totemic societies, pleasure is considered one of the important goals a person has to achieve in her life. To sum up, modern advertising can be regarded as a coherent system of beliefs resembling religion. In this religion, the role of sacred things is performed by brands of consumer goods. This religion of brands bears great similarities to individual totemism, as described by Emile Durkheim.

208 See BRUNO S. FREY & ALOIS STUTZER, HAPPINESS AND WELL-BEING: HOW THE ECONOMY AND INSTITUTIONS AFFECT HAPPINESS 29 (2002) ("The material standard of living is regularly mentioned by a majority of respondents as being one of the most important elements of well-being. Consumption has become one of the central activities of modern life"); ERICH FROMM, THE SANE SOCIETY 123 (1955) ("Modern man, if he dared to be articulate about his concept of heaven, would describe a vision which would look like the biggest department store in the world, showing new things and gadgets, and himself having plenty of money with which to buy them"). 209 See above, Part 1(B). 210 Pop, supra note 139, at 372 (discussing the current —the new secular cult of the self— and the self oriented contemporary culture); see generally CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); Tom Wilfe, The 'Me' Decade and the Third Great Awakening, 23 NEW YORK 26 (1976), available at http://nymag.com/news/features/45938. 211 BAUDRILLARD, supra note 161, at 80.

31

4. TRADEMARK LAW AND MAGICAL THINKING As discussed in previous parts, the legal system generally treats the individual as a rational being. Meanwhile, people have a strong tendency toward irrational, magical thinking, a tendency which is extensively exploited by modern advertising.212 While protecting the consumer against misleading advertising, the legal system takes no account of this tendency.213 As demonstrated in the previous part, magical advertising attempts to create a totemic-like religion, in which brands perform the role of sacred things. In all religions, sacred things are essentially miraculous objects that obey the peculiar laws of magic.214 In addition, sacred things enjoy a very special status: they are protected by particular rules against profanation.215 This part will examine the legal attitude toward brands. It will inquire whether trademark law adopts, to any extent, the perception of brands as sacred things that should be treated according to the laws of magic and protected against profanation. Trademark law is traditionally based on the general legal presumption of human rationality. Its primary purpose is to protect trademarks as informational devices identifying the source of goods and allowing the consumer to gather information about the quality of various products.216 A trademark should reduce consumer search costs, and thus promote the overall economic efficiency.217 The primary goal of

212 See above, Part 1. 213 See above, Part 2. 214 DURKHEIM, supra note 14, at 108-119, 199-201 (explaining that all sacred things have magical power – "," which gives them a special position in a society, often to the extent of being considered outside the normal world and the normal practices); Edward S. Ames, The : A Professional Reading Course, 49 THE BIBLICAL WORLD, 189, 191 (1917) ("sacred objects have magical power"). 215 DURKHEIM, id. at 299 et seq. 216 See, e.g., Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 770-71 (1992) ("the legal recognition of [a] trademark or trade dress acknowledges the owner’s legitimate proprietary interest in its unique and valuable informational device"); William M. Landes & Richard A. Posner, Trademark Law: An Economic Perspective, 30 JOURNAL OF LAW AND ECONOMICS 265, 269 (1987) ("a trademark conveys information that allows the consumer to say to himself, "I need not investigate the attributes of the brand I am about to purchase because the trademark is a shorthand way of telling me that the attributes are the same as that of the brand I enjoyed earlier"); Stacey L. Dogan & Mark A. Lemley, A Search- Costs Theory of Limiting Doctrines in Trademark Law, 97 TRADEMARK REP. 1223, 1225-26 (2007) ("Rather than having to inquire into the provenance and qualities of every potential purchase, consumers can look to trademarks as shorthand indicators"); Bone, supra note 5, at 555 ("By enforcing exclusivity, trademark law assures that consumers can rely on marks to retrieve information about a product that they have acquired through experience, advertising, or word of mouth"). 217 See, e.g., Ty Inc. v. Perryman, 306 F.3d 509, 510 (7th Cir. 2002) ("The fundamental purpose of a trademark is to reduce consumer search costs by providing a concise and unequivocal identifier of the particular source of particular goods"); Landes & Posner, id. at 270 (1987) ("The value of a trademark

32 trademark law is to prevent consumer confusion as to the source of goods.218 This goal is entirely consequent with the perception of consumer as a rational being.219 For instance, if the consumer learns, from personal experience or otherwise, that Toyota cars are of a high quality, she will be able to make a rational purchasing decision only if no other car manufacturer is allowed to confuse her by marking his cars with the "Toyota" trademark. With the course of time, the notion of consumer confusion has been sufficiently broadened.220 Furthermore, today the doctrine of dilution provides additional protection to famous trademarks. This doctrine is not concerned with consumer confusion, but solely with preserving the selling power of the mark.221 The broad consumer confusion test coupled with the doctrine of dilution increasingly results in protecting trademarks against unauthorized uses that merely evoke associations, without causing any meaningful consumer confusion. I will argue that protecting trademarks against associations, trademark law essentially adopts the laws of magical thinking into its domain. But first, it should be clarified what associations have to do with magic.

is the saving in search costs made possible by the information or reputation that the trademark conveys or embodies about the brand"); Dogan & Lemley, id. ("In economic terms, trademarks contribute to economic efficiency by reducing consumer search costs"); Bone, id. ("First, and most important, [trademark law] helps to reduce consumer search costs"); MCCARTHY, supra note 19, at § 2:5 ("The point is that trademarks reduce the customer's cost of acquiring information about products and services"). 218 Dogan & Lemley, id. at 1228; MCCARTHY, id. at § 2:8. 219 Graeme W. Austin, Trademarks and the Burdened Imagination, 69 BROOK. L. REV. 827, 855 (2004) ("Because trademarks facilitate the expression of consumer choices, legal protection of trademarks seems to comport with and support the consumer sovereignty framework") 220 See Graeme W. Austin, Tolerating Confusion about Confusion, 50 ARIZ. L. REV. 157, 174-75 (2008) ("For the most part, trademark law has increased the repertoire of legally cognizable things about which consumers can be confused"); Bone, supra note 5, at 606-615; Mark P. McKenna, The Normative Foundations of Trademark Law, 82 NOTRE DAME L. REV. 1839, 1904-12 (2007); Assaf, Brand Fetishism, forthcoming in CONNECTICUT LAW REVIEW, Part III(B)1, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1470614. 221 See, e.g., Toys R Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F. Supp. 1189, 1208 (E.D. N.Y. 1983) ("The essence of dilution is the watering down of the potency of a mark and the gradual debilitation of its selling power"); Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 624-25 (2d Cir. 1983) ("The interest protected by [the doctrine of dilution] is not simply commercial goodwill, but the selling power that a distinctive mark or name with favorable associations has engendered for a product in the mind of the consuming public"); Mead Data Cent., Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d. 1026, 1031 (2d Cir. 1989) (dilution is "the whittling away of an established trademark's selling power and value through its unauthorized use by others upon dissimilar products"); Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 265 (4th Cir. 2007) (stating that dilution protects "the ability of the famous mark uniquely to identify a single source and thus maintain its selling power").

33 Anthropological literature describes "sympathetic magic"—magic based on similarity or contact—as the most common type of magic.222 The laws of sympathetic magic are observed across a wide range of traditional cultures and are persistent in modern cultures as well.223 Therefore, it has been suggested that these laws reflect general patterns of human thought.224 The laws of sympathetic magic are similar to the laws of cognitive association of ideas. Yet, anthropologists have pointed out an important difference between them: while the laws of association operate only within the human mind, the laws of magic project these cognitive laws into the real world.225 For instance, while we may cognitively associate a person with her photograph, this association does not yet lead to the conclusion that destroying the photograph would harm the person. Such conclusion is, however, typical for magical thinking: the essence of sympathetic magic is the projection of cognitive associations into the real world. In other words, sympathetic magic is largely based on the false assumption that the real world is organized according to principles similar to the cognitive laws of association.226 Sympathetic magic is governed by two principles: the law of similarity and the law of contagion.227 The following discussion will briefly explain these magical laws and show how they are applied in the domain of trademark law.

(A) The Law of Similarity The law of similarity is essentially captured by the phrase "like produces like": an effect resembles its cause.228 For example, a fruitful woman makes plants fruitful; a barren woman makes them barren.229 Cherokee Indians believe that washing one's

222 See, e.g., Rozin & Nemeroff, supra note 27, at 205-6; JAMES GEORGE FRAZER, THE GOLDEN BOUGH: A STUDY IN MAGIC AND RELIGION 12 (1978). 223 Rozin & Nemeroff, id. at 205-7; Subbotsky & Quinteros, supra note 25, at 521 et seq.; Shweder et al., supra note 27, at 637-38; WILLIAM COVINO, MAGIC, RHETORIC, AND LITERACY:‎ AN ECCENTRIC HISTORY OF THE COMPOSING IMAGINATION 1 (1994). 224 Shweder et al., id. 225 Rozin & Nemeroff, supra note 27, at 206-7 ("Tylor, Frazer, and Mauss thought of the laws of sympathetic magic as laws of thought. They recognized the parallel between these laws and the laws of association of the British empiricist philosophers. […] However, […] Tylor, Frazer, and Mauss recognized one fundamental difference between the two sets of laws: The laws of association are limited to the domain of thought; they operate within the head. The laws of magic project these laws into the real world; that is, the physical world is held to be organized along principles similar to the laws of thought"). 226 Id. 227 Id. at 205-6; FRAZER, supra note 222, at 12-14. 228 Rozin & Nemeroff, id. at 206; FRAZER id. at 14. 229 FRAZER, id. at 33.

34 hair with the tough wiry roots of the catgut plant will make the hair strong.230 Advertising frequently employs the logic of the magical law of similarity. For instance, several brands of shampoo are advertised as containing silk, although silk has no scientifically known effect on hair.231 According to the magical law of similarity, objects that superficially resemble one another, share fundamental properties.232 For instance, an experiment has shown that after the subjects themselves put a "cyanide" label on a bottle of sugar water, this bottle has become less desirable for them.233 Sacred things are especially powerful in transmitting their qualities to things resembling them. For example, anything even remotely resembling or recalling the totemic mark is considered sacred.234 Thus, a stone may be sacred solely because of an accidental resemblance of its shape to a sacred symbol.235 What does trademark law have to do with the magical law of similarity? Trademark law aims to prevent confusion as to the source of goods.236 It is a well-settled principle that merely calling to mind, creating an association with a trademark is allowed and does not constitute an infringement.237 For instance, the "Lardache" brand with a pig logo for large size jeans was held not to infringe the Jordache trademark with its horse logo.238 Although this principle has never been challenged directly, the legal notion of trademark confusion increasingly expands into the domain of associations. One aspect of this tendency is the growing judicial hostility toward trademarks that clearly sound as alternatives to famous brands. Thus, one court has found "Lessbucks" confusingly similar to "Starbucks," although the name was clearly meant to suggest cheaper

230 Id. 231 See, e.g., Carpenter et al., supra note 41, at 339 ("Alberto Culver differentiates its Alberto Natural Silk Shampoo by including silk in the shampoo, and advertising it with the slogan "We put silk in a bottle" to suggest a user's hair will be silky. However, a company spokesman conceded that silk "doesn't really do anything for hair"). 232 Rozin & Nemeroff, supra note 27, at 206. 233 Paul Rozin et al., Operation of the Laws of Sympathetic Magic in Disgust and Other Domains, 50 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 703, 705 et seq. (1986). 234 DURKHEIM, supra note 14, at 222, 324. 235 Id. at 103. 236 MCCARTHY, supra note 19, at § 2:8. 237 See, e.g., Application of Ferrero, 479 F.2d 1395, 1397 (C.C.P.A. 1973) ("The very fact of calling to mind may indicate that the mind is distinguishing, rather than being confused by, the two marks"); University of Notre Dame Du Lac v. J.C. Gourmet Food Imports Co., Inc., 703 F.2d 1372, 1374 (Fed. Cir. 1983) ("[likelihood of confusion] means more than the likelihood that the public will recall a famous mark on seeing the same mark used by another"). See also MCCARTHY, id. at § 23:9. 238 Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486 (10th Cir.1987).

35 coffee.239 Similarly, a natural, herbal alternative to "Prozac" named "Herbozac" was held to infringe the famous mark because of the defendant's intent to create an association with "Prozac."240 Additional examples include the holding that "A.2" meat sauce infringes on the famous "A.1"241 and that "Gucchi Goo" for a diaper bag infringes on "Gucci."242 Although parody does constitute a factor that weights against establishing trademark infringement,243 courts consistently hold that parody cannot exempt from liability where "the purpose of the similarity is to capitalize on a famous mark's popularity for the defendant's own commercial use."244 This statement comes very close to holding that creating associations with famous marks is no longer allowed. Furthermore, courts increasingly recognize so-called "subliminal confusion" as an actionable trademark infringement.245 One of the first cases to recognize this type of infringement dealt with two manufacturers of drugs that prevent women from developing antibodies to Rh-positive cells during and after pregnancy.246 The market leader used the name "RhoGAM" and sought to prevent a newcomer from using the name "Rho-Immune." The court found that the similarity between the marks was not sufficient to cause consumer confusion.247 Yet, the court went on to hold that "this is a case in which confusion or deception occurs on a subliminal or subconscious level, causing the consumer to identify the properties and reputation of one product with

239 Starbucks U.S. Brands, LLC v. Ruben, 78 U.S.P.Q.2d 1741, *12 (T.T.A.B. 2006). 240 Eli Lilly & Co. v. Natural Answers, Inc., 86 F.Supp.2d 834, 838 et seq.(7th Cir. 2000). 241 Nabisco Brands, Inc. v. Kaye, 19 U.S.P.Q.2d 1465, 1467 (D. Conn. 1991). 242 Gucci Shops, Inc. v. R. H. Macy & Co., Inc., 446 F. Supp. 838, 840 (S.D. N.Y. 1977). 243 See, e.g., Nike, Inc. v. Just Did It Enterprises, 6 F.3d 1225, 1227 (7th Cir. 1993) ("When businesses seek the national spotlight, part of the territory includes accepting a certain amount of ridicule. The First Amendment, which protects individuals from laws infringing free expression, allows such ridicule in the form of parody"); Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 420-421 (S.D. N.Y. 2002) (discussing "Timmy Holedigger" pet perfume, the court noted: "Hilfiger fails to see the humor in all of this. […] Although Hilfiger is unamused, it has not offered evidence on the issue of confusion that would justify denying [defendant's] motion for summary judgment"); Burnett v. Twentieth Century Fox Film Corp., 491 F. Supp. 2d 962, 972 (C.D. Cal. 2007) (the court dismissed a copyright and trademark infringement claim against an offensive television cartoon parody of performer Carol Burnett). 244 Hard Rock Cafe Licensing Corp. v. Pacific Graphics, Inc., 21 U.S.P.Q.2d 1368, 1373-74 (W.D. Wash. 1991). See also MCCARTHY, supra note 19, at § 31:153. 245 See, e.g., Dreyfus Fund, Inc. v. Royal Bank of Canada, 525 F. Supp. 1108, 1123 (S.D.N.Y. 1981); Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc., 486 F. Supp. 414, 428 (S.D.N.Y. 1980); Farberware, Inc. v. Mr. Coffee, Inc., 740 F. Supp. 291, 302 (D. Del. 1990); Stern’s -Gro Prods., Inc. v. Shark Prods., Inc., 823 F. Supp. 1077, 1090 (S.D.N.Y. 1993). See also Steven H. Hartman, Subliminal Confusion: The Misappropriation of Advertising Value, 78 TRADEMARK REP. 506 (1988); Chi-Ru Jou, The Perils of a Mental Association Standard of Liability: The Case Against the Subliminal Confusion Cause of Action, 11 VA. J.L. & TECH 2 (2006). 246 Ortho Pharmaceutical Corp. v. American Cyanamid Co., 361 F. Supp. 1032. 247 Id. at 1039-44.

36 those of another, although he can identify the particular manufacturer of each. The trade-mark laws protect against this kind of psychological confusion implanted by similar trade-marks in the mind of a consumer."248 The correlation between "subliminal confusion" and the magical law of similarity is readily apparent. The belief that similarity in external features indicates deep resemblance of fundamental properties is at the very heart of this magical law. Since people have a natural tendency toward magical thinking, the court's speculation that the consumer will unconsciously attribute the properties of "RhoGAM" to "Rho- Immune" because of the similarity in names and despite lack of confusion seems realistic. Yet, recognizing the exploitation of the tendency toward magical thinking as an actionable legal wrong, this decision, along with other cases on "subliminal confusion,"249 represents a clear departure from the legal presumption of human rationality. This broadened confusion test makes it increasingly impossible for a competitor to gain consumer attention by evoking an association with a famous trademark. Thus, in one case, the court concluded that a magazine subtitle "America's Edition of Italy's Playmen" is not likely to cause substantial confusion with "Playboy."250 Yet, it granted an injunction relief, reasoning that the subtitle created "a danger of continued subliminal reinforcement […] so as to raise the level of anticipated quality of the product."251 Another court found that "Gunsmoke" cigarettes infringed upon Marlboro's trade dress because of a subliminal association created with the "Marlboro Man" motifs.252 The court went on to explain that the whole purpose of the advertising industry is to create trademarks with "commercial magnetism," a positive atmosphere that influences the consumer even if she is not fully aware of this influence. Exploitation of this positive atmosphere by competitors is not allowed, even when made without causing consumer confusion.253 Interestingly, while courts assume consumer rationality and take little account of the tendency toward irrational thinking while dealing with claims of misleading advertising,254 they do take this tendency into consideration while protecting famous

248 Id. at 1043-45. 249 See supra note 245 and infra notes 250-52. 250 Playboy Enters., Inc. v. Chuckleberry Publ'g, Inc., 511 F. Supp. 486, 494 (S.D.N.Y. 1981). 251 Id. 252 Philip Morris Inc. v. Star Tobacco Corp., 879 F. Supp. 379, 384-85 (S.D.N.Y. 1995). 253 Id. 254 See above, Part 2.

37 trademarks. Although trademark infringement cases recite the "reasonable consumer" standard,255 courts seem to have essentially different consumer figures in mind in these two contexts.256 For example, would the "reasonable consumer" for whom the ad claiming that "Magic Secret" cream causes an "astringent sensation" means nothing—would she be confused in any way by the coffee shop named "Lessbucks"? Would this skeptical consumer, who is not influenced by the trade name "Hi-C," as long as a disclaimer tells her that the product does not contain vitamin C—would she be influenced in any way by the "Marlboro Man" motifs while realizing that the cigarettes do not originate with Phillip Morris?257 While Cartesian logic is apparent in cases dealing with misleading advertising, in the field of trademark infringement courts take a position much closer to Spinozian view. Although this latter view is much more realistic, this does not justify the discrepancy in the legal standards of consumer confusion. The legal system may deliberately choose to ignore certain human tendencies. Its general presumption of human rationality expresses a liberal and anti-paternalistic approach. This approach often makes perfect sense: the tendency toward irrational thinking should not necessarily lead to the conclusion that people need protection from influences that might induce irrational behavior or from their own irrational choices. Once this liberal approach has been chosen, one needs some justification to deviate from it.

255 See, e.g. Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161, 1163-64 (C.D. Cal. 1998); Lucasfilm Ltd. v. Media Market Group, Ltd., 182 F. Supp. 2d 897, 901 (N.D. Cal. 2002); Smith v. Wal-Mart Stores, Inc., 537 F. Supp. 2d 1302, 1339 (N.D. Ga. 2008). 256 A related point was made by Barton Beebe, Search and Persuasion in Trademark Law, 103 MICH. L. REV. 2020, 2025 (2005) ("The rational consumer may justify the protection of trademarks for their informational content, but, in his perspicacity, he also justifies a narrow scope of protection as against other similar marks. The consumer as fool is a similarly double-edged construct. His susceptibility to the persuasive content of trademarks undermines the basis of trademark protection, but his lack of discernment also recommends a wide scope of protection when protection is given. The result is that trademark apologists--and plaintiffs--tend to adduce the sovereign when they speak of the basis of protection and the fool when they speak of the scope. Trademark restrictionists--and defendants--do the reverse.") 257 Several scholars have noted that in trademark infringement cases, courts assume a strikingly consumer's susceptibility to confusion: see Austin, supra note 219, at 889 et seq. ("There are innumerable examples in trademark law where findings of trademark infringement suggest that consumers really are quite susceptible to confusion"); Rochelle Cooper Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 COLUM.-VLA J.L. & ARTS 123, 133 (1996) ("recent […] cases have shown a willingness to believe in an astonishingly stupid consumer"); Jessica Litman, Breakfast with Batman: The Public Interest in the Advertising Age, 108 YALE L.J. 1717, 1722 (1999) ("Recently, we have seen a great deal of the extraordinarily gullible consumer"); Ann Bartow, Likelihood of Confusion, 41 SAN DIEGO L. REV. 721 (2004) (arguing that courts are too quick to establish likelihood of confusion in trademark cases by reliance on unproven allegations about the ignorance and deficient observational powers of the public). For elaborated discussions see Beebe, id. at 2038 et seq.; Deborah R. Gerhardt, Consumer Investment in Trademark, 88 N.C. L. REV. 427, 437 et seq. (2010).

38 The legal system could have chosen to protect the consumer from the influences of advertising appealing to irrational thinking because of the consumer's relatively weak position in the market. Had it chosen to do so, it might have been sensible to take account of the consumer's tendency toward irrational thinking while protecting trademarks as well.258 But once the legal system has chosen to ignore this tendency in the context of misleading advertising, there seems to be no reason to change this approach in the context of trademark law. The interest of the trademark owner to protect the "commercial magnetism" of his mark does not provide a sufficient justification for such an inconsistent approach. This "commercial magnetism" is nothing else than an outcome of advertising appealing to irrational, magical thinking. As the "Gunsmoke" court recognized, the "commercial magnetism" is a positive atmosphere that influences the consumer even when she is not aware of it.259 The primary goal of trademark law is to enable the consumer to gather information about the various goods, so that she can make an educated purchasing choice.260 The protection of "commercial magnetism" takes trademark law far away from this goal, turning it instead into a tool of protecting competitive advantages gained by exploitation of the human tendency toward irrational, magical thinking. In addition, protecting "commercial magnetism," trademark law ultimately makes the investment in magical advertising more profitable, thus providing corporations with an additional incentive to employ it. This outcome can hardly be regarded as desirable. Moreover, applying the laws of magical thinking to trademarks grants trademarks an exceptional status in the legal landscape.261 The legal system thus indirectly communicates the message that people employ magical thinking in relation to trademarks, but not in other contexts. This message essentially supports the efforts of the advertising industry in creating the perception of brands as unusual, magical things. This legal message also contributes to the perception of brands as sacred things, since the sacred is the primary subject of magical laws in all religions.262 As noted above, even a remote resemblance of an object to churinga leads to the conclusion that the object is sacred, that is, has the same properties as churinga. Similarly, in the view of the legal system, even a superficial and (consciously) non-

258 Although I find this solution less desirable: see below, Part 5. 259 879 F. Supp. 379, 384-85. 260 See supra notes 216-17. 261 A related point was made by Michael J. Pettit, The Unwary Purchaser: Consumer Psychology and the Regulation of Commerce in America, 43 J. HIST. BEHAV. SCI. 379, 384 (2007). 262 See supra note 214.

39 confusing resemblance to a famous brand—such as the use of "Marlboro Man" motifs—should make the consumer believe that the product partakes in some of the brand's properties. Another tool of protecting famous trademarks against associations evoked by competitors is the doctrine of dilution. This doctrine protects trademarks in absence of consumer confusion. Since the 2006 amendment of the Lanham Act, dilution is explicitly defined as "association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark."263 Examples of dilution include "Haha," which was held to dilute "Wawa," when both marks were used for convenience stores264 and "Pro-Techniques," which was found dilutive of "Nailtiques," when both marks were used for fingernail care products.265 The doctrine of dilution specifically aims to protect the "unique character,"266 the "selling power"267 and the "magic"268 of famous marks. The protection against essentially non-confusing associations, provided by the broad consumer confusion test and the doctrine of dilution, promotes the perception of trademarks as sacred things in one additional way. As Durkheim explains, the sacred and the profane are perceived as two classes radically opposed to each other. When we think of holy things, the idea of a profane object cannot enter the mind without encountering grave resistance: the representation of the sacred does not tolerate neighbors.269 And if the ideas do not coexist, things should not touch each other either.270 Therefore, it is important to keep the profane at a respectful distance from the sacred, to create a sort of vacuum between them.271 This idea of separation exists in advertising as well: ads for leading brands usually avoid direct comparisons with competitors and attempt to present the brand as something unique and profoundly different from everything else.272 Preventing competitors from using trademarks that call to mind famous brands endorses this

263 15 U.S.C. § 1125(c)(2)(B) 264 WAWA Dairy Farms v. Haaf, 40 U.S.P.Q.2d 1629, 1630-33 aff'd 116 F.3d 471 (3d Cir. 1997). 265 Nailtiques Cosmetic Corp. v. Salon Sciences, Corp., 41 U.S.P.Q.2d 1995, 1998 (S.D. Fla. 1997). 266 Community Federal Sav. & Loan Ass'n v. Orondorff, 678 F.2d 1034, 1037 (11th Cir. 1982). 267 Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625-26 (2d Cir. 1983). 268 Augusta National, Inc. v. Northwestern Mutual Life Ins. Co., 193 USPQ 210, 222 (S.D.Ga.1976). 269 DURKHEIM, supra note 14, at 317. 270 Id. 271 Id. at 318. 272 See, e.g., Gerald J. Gorn & Charles B. Weinberg, The Impact of Comparative Advertising on Perception and Attitude: Some Positive Findings, 11 THE JOURNAL OF CONSUMER RESEARCH 719, 720 (1984); Dhruv Grewal et al., Comparative versus Noncomparative Advertising: A Meta-Analysis, 61 THE JOURNAL OF MARKETING 1, 6 (1997).

40 perception: trademarks such as "Lessbucks," "A-2," "Playmen" and "Wawa" suggest that the products provide alternatives to the famous brands. Enjoining such uses, trademark law lends support to the idea that famous brands are beyond comparison. Protecting these brands from non-confusing associations creates the sort of vacuum needed to keep the profane in a respectful distance from the sacred.

(B) The Law of Contagion The second law characterizing sympathetic magic is the law of contagion. This law is expressed by the phrase "once in contact, always in contact": a contact between two things may transfer properties from one thing to the other.273 , and the laying on of hands are examples of contagious magic.274 Particularly names are considered to be capable of transmitting the object's essence, hence the belief in magical spells: pronouncing a certain name will evoke the power of the entity bearing that name.275 The magical law of contagion has two facets: "positive contagion" and "negative contagion," which will be discussed separately.

(B.1) Positive Contagion "Positive contagion" is the ability of things to transfer their benevolent powers.276 Sacred things are especially effective in producing positive contagious effects: the religious emotions attached to the sacred are so powerful that they have a strong tendency to spread themselves.277 Thus, anything coming into contact with a sacred thing may obtain its powers.278 Religious forces are immanently contagious, and hence, they can extend to any object: there are no particular objects that are predestinated to bear them, to the exclusion of others.279 For instance, the totemic mark can bind together things of entirely different classes: any object coming into contact with the sacred symbol is sacred. Thus, minerals, plants, animals, etc. are all considered sacred when they bear the totemic

273 Rozin & Nemeroff, supra note 27, at 206; FRAZER supra note 222, at 43. 274 Rozin & Nemeroff, id. at 209. 275 Id. at 225-26. 276 Id. at 208-9. 277 DURKHEIM, supra note 14, at 321. 278 Id. 279 Id. at 323-24.

41 mark.280 All such things are regarded as having the same qualities.281 The religious sentiments inspired by the vastly different sacred things obviously do not derive from their intrinsic properties, but from the totemic mark.282 As Durkheim notes, religion substitutes the world perceived by senses with a different one.283 The commercial religion of brands relies heavily on the principles of positive contagion. Strong brands are often extended into very distant product fields.284 For example, Harley-Davidson has been extended from motorbikes to sunglasses, hair accessories, and underwear; Virgin sells, inter alia, music, airlines, soft drinks, vodka, credit cards, and mobile phones while Jaguar, along with its cars, markets perfume, lipstick, and body lotion.285 Licensing brands into new product fields is a very profitable commercial practice.286 It allows the licensee to charge premium prices,287 while the trademark owner benefits from high license fees without substantial efforts.288 Corporations are usually unable to exercise any meaningful quality control while licensing their brands into distant product categories and do not exercise such control as a matter of fact.289 Commentators speculate that an ordinary consumer would not expect the trademark licensor to be significantly involved in the manufacturing or the

280 Id. at 235-36. 281 Id. at 150. 282 Id. at 122-26, 229. 283 Id. at 236. 284 See Assaf, supra note 220, Part I(D). 285 Christina Binkley, Like Our Sunglasses? Try Our Vodka!, available at http://online.wsj.com/article/SB119448403906785900.html. 286 Julie Manning Magid et al., Quantifying Brand Image: Empirical Evidence of Trademark Dilution, 43 AM. BUS. L.J. 1, 31-32 (2006) (listing several reasons why brand extensions represent immense potential economic benefits for a business). 287 Joffre Swait et al., The Equalization Price: A Measure of Consumer-Perceived Brand Equity, 10 INTERNATIONAL JOURNAL OF RESEARCH IN MARKETING 23, 25-26 (1993). 288 Elizabeth C. Bannon, The Growing Risk of Self-Dilution, 82 TRADEMARK REP. 570, 587 (1992) ("Quite simply, the trademark owner sees a 'cash cow' when he is shown the value of licensing his trademark and the potential of 'exploitation'). 289 Assaf, supra note 220, Part III(B)2 ("In collateral licensing, the trademark owner is usually not in a position to control the quality of the licensed products. He has never manufactured the products in question and hence has neither the knowledge nor the expertise to specify appropriate quality standards for the licensee. […] Finally, as a matter of fact, collateral trademark licensors do not engage in quality control programs, but merely preserve formal contractual rights to control"); Keating, Promotional Trademark Licensing: A Concept Whose Time Has Come, 89 DICKINSON LAW REVIEW 363, 378 (1985); Alfred M. Marks, Trademark Licensing – Towards a More Flexible Standard, 78 TRADEMARK REP. 641, 648-49 (1988); Kevin Parks, 'Naked' Is not a Four-Letter Word: Debunking the Myth of the 'Quality Control Requirement' in Trademark Licensing, 82 TRADEMARK REP. 531, 544-45 (1992); David J. Franklyn, Toward a Coherent Theory of Strict Liability for Trademark Licensors, 72 S. CAL. L. REV. 1, 14, 16-17, 19 (1998); Lisa H. Johnston, Drifting Toward Trademark Rights in Gross, 85 TRADEMARK REP. 19, 35 (1995(; Neil A. Goldberg and Joseph L. Mooney, Product Licensing: An Emerging Litigation Arena, 48 NO. 12 DRI For Def. 70 (2006).

42 design process when the product lies far from its initial field of activity.290 What, if so, explains the consumer's preference of an extension of a famous brand to other products in the same category? Why would she be inclined to prefer, and to pay a higher price, for a "Jaguar" lipstick when the company obviously has no expertise in this product field? Rational considerations do not seem to provide a plausible explanation to such consumer behavior.291 I believe that far-flung brands extensions are made possible inter alia because of the human tendency toward magical thinking, particularly toward positive contagion. As discussed above, famous brands evoke strong consumer emotions: brain scan studies have found these emotions to be similar to religious sentiments.292 Exploiting the rules of positive contagion, corporations license their marks as triggers of these emotions in deliberate product fields. An extensively extended brand functions much like a totemic mark, binding dissimilar things together. Just like minerals, plants and animals may be bound by a totem, products as diverse as motorbikes and hair accessories, as cars and perfume, as music recordings and airlines, can be united by a single brand. This totem-like behavior implicitly suggests that a famous brand is especially effective in transferring its benevolent powers: any product bearing the brand name partakes in its aura. Since strong effects of positive contagion are characteristic of the sacred, brand extensions contribute to the perception of brands as miraculous, sacred things. Trademark law has essentially internalized the idea that famous brands should be treated according to the magical law of positive contagion. Two doctrines that most explicitly demonstrate this are, again, the broad test of consumer confusion and the doctrine of dilution. Let us start with the consumer confusion test. The discussion in the previous section demonstrated that the current broad scope of this test results in protecting trademarks from associative uses in the same product category. Another dimension of the broadened confusion test is the extensive protection it currently provides across product categories. Today, consumer confusion is frequently established when a

290 David J. Franklyn, The Apparent Manufacturer Doctrine, Trademark Licensors and the Third Restatement of Torts 49 CASE W. RES. 671, 715 (1999) (arguing that when the industry in which the trademark owner is licensing is far removed from his primary field of activity, "consumers will be hard-pressed to argue that they believed the licensor made or dictated the standards for making the licensed goods"). See also Assaf, id. 291 See Assaf, id. 292 See above, Part 3(A).

43 famous mark is used in a product field very distant from its initial one. Courts routinely assume that the "reasonable consumer" expects famous marks to function in a broad variety of product areas. Thus, for example, the consumer was presumed to anticipate that "Hallmark" auto dealership was connected to the producer of the greeting cards,293 that "Lloyd's of London" aftershave originated with "Lloyd's of London" insurance services294 and that "Harley-Hog" pork was a new product line of "Harley-Davidson."295 Obviously, Hallmark Cards, Inc. has no expertise in the auto dealership business, "Lloyd's of London" is hardly skilled to exercise quality control on aftershave and Harley-Davidson Inc. employs no experts in pork. If indeed licensed into such distant product areas, these brands would provide the consumer with little information about the quality of the respective goods.296 Thus, the broad consumer confusion test does not protect trademarks as informative tools.297 Rather, it protects the magical, sacred dimension of brands. Assuming that the consumer expects famous brands to be extended so far, trademark law essentially internalizes the idea that a brand may produce the effects of positive contagion, binding together entirely different products in some meaningful way. The use of a brand in a distant product field provides the consumer with no meaningful product information.298 Accordingly, consumer confusion resulting from such use, when made without authorization, causes no real harm to the consumer. Yet, famous brands may be harmed by such use. As Durkheim explains, the sacred character of things derives entirely from human imagination; it ceases to exist when people stop believing in it.299 If unauthorized uses of famous brands in distant product fields become widespread, the consumer would ultimately learn that the uses are unauthorized and cease to believe that brands can be extended very far from their initial product fields. This would undermine the entire practice of far-flung brand extensions. Accordingly, the perception that a famous brand can bind entirely

293 Hallmark Cards, Inc. v. Hallmark Dodge, Inc., 634 F. Supp. 990 (W.D. Mo. 1986). 294 Corporation of Lloyd's v. Louis D'Or of France, Inc., 202 U.S.P.Q. 313 (T.T.A.B. 1979). 295 Harley-Davidson Motor Co. v. Pierce Foods Corp., 231 U.S.P.Q. 857, 863 (T.T.A.B. 1986). 296 Assaf, supra note 220, Part III(B)2 ("A trademark in collateral markets […] does not serve to provide product information and save consumer search costs"). 297 See Mark P. McKenna, Testing Modern Trademark Law's Theory of Harm, 95 IOWA L. REV. 63, 84 (2009) (arguing that the harms caused by confusion in the case of unrelated goods are more similar to those addressed by dilution than those caused by confusion in the case of competing goods). 298 Id. 299 DURKHEIM, supra note 14, at 345-46.

44 different things together would fade: the brand will be regarded as an entity capable of operating only in its limited product field. This would likely impair the sacred character of famous brands. The broad test of consumer confusion is thus an important factor that allows corporations to advance the perception of brands as magical, sacred things. The doctrine of dilution provides an additional powerful tool of protecting trademarks across product categories. This kind of protection actually lies at the heart of this doctrine. Its primary purpose is to protect the unique character of a famous mark from a "gradual whittling away" caused by non-confusing uses on dissimilar products.300 Dilution protects famous trademarks from unauthorized uses made in such distant product fields that consumer confusion is deemed unlikely even under the current broad confusion test.301 For instance, the use of the name "Tiffany" for restaurant services302 and for a movie theater303 were found to dilute the famous jewelry mark; "Bacardi" on jewelry was enjoined as a dilution of the trademark for rum304 and the "Lexus" automobile mark was protected against the use on personal care products.305 The first proposal to protect famous trademarks against dilution was made in an article published in 1927.306 Since then, legal and non-legal scholars relentlessly struggle to understand the underlying rationale of this doctrine.307 Some believe that

300 MCCARTHY, supra note 19Error! Bookmark not defined., at § 24:73. 301 Id. at § 24:69 ("Dilution theory states that […] if customers or prospective customers see the plaintiff's famous mark used by other persons to identify other sources for many different goods and services, then the ability of the famous mark to clearly identify and distinguish only one source might be "diluted" or weakened. This diminution of the strength of the famous mark could occur even though no confusion as to source, sponsorship, affiliation or connection has occurred"). 302 Tiffany & Co. v. Boston Club, Inc., 231 F. Supp. 836 (D. Mass. 1964). 303 Tiffany & Co. v. Tiffany Productions, 264 N.Y.S. 459 (N.Y. Sup. Ct.1932), aff'd, 260 N.Y.S. 821 (N.Y. App. Div. 1932). 304 Bacardi & Company Ltd. v. Bacardi Mfg Jewelers Co., Inc., 174 U.S.P.Q. 284 (N.D. Ill. 1972), aff'd, 475 F.2d 1406 (7th Cir. 1973). 305 Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corp. v. Natural Health Trends Corp., 2005 U.S. Dist. LEXIS 10442 (C.D. Cal. 2005). 306 Frank I. Schechter, The Rational Basis of Trademark Protection, 40 Harv. L. Rev. 813 (1927). 307 See, e.g., Landes & Posner, supra note 216, at 306-9 (suggesting three possible economic grounds for the dilution doctrine); Alexander F. Simonson, How and When Do Trademarks Dilute: A Behavioral Framework to Judge "Likelihood" of Dilution, 83 TRADEMARK REP. 149, 151 (1993) (defining dilution as a reduction of brand equity); Patrick M. Bible, Defining and Quantifying Dilution under the Federal Trademark Dilution Act of 1995: Using Survey Evidence to Show Actual Dilution, 70 U. COLO. L. REV. 295, 314 et seq. (1999) (suggesting how to measure dilution); Maureen Morrin & Jacob Jacoby, Trademark Dilution: Empirical Measures for an Elusive Concept, 19 JOURNAL OF PUBLIC POLICY & MARKETING 265, 267-68 (2000) (defining dilution as the strength of association between brand names and their product categories); Chris Pullig et al., Brand Dilution: When Do New Brands Hurt Existing Brands?, 70 JOURNAL OF MARKETING 52, 54 (2006) (defining dilution as a weakening of the associations between a brand and its distinctive aspects that define the meaning of the

45 the doctrine of dilution protects against illusory damage and thus introduces an unjustified extension of trademark protection,308 while others find that the doctrine protects against real and serious harm.309 The rationale for protecting trademarks against dilution is indeed somewhat puzzling. The evil of dilution lies in the additional association added by a non-confusing use to a famous trademark.310 This additional association is said to impair the selling power, the uniqueness and the distinctiveness of the mark, as the mark ceases to be mentally linked exclusively with its owner.311 In other words, when the consumer comes upon a "Tiffany" restaurant, she understands that it is in no way connected to the jewelry company. The name "Tiffany" will thus signify for her two different and unconnected things: the jewels and the restaurant. The doctrine of dilution presumes that the added associative link will blur the power of the famous trademark in her mind: the mental connection between the word "Tiffany" and the famous jewelry company will loose its uniqueness and thus grow weaker. For several decades, the concept of dilution was largely based on the mere intuition that additional associative links will harm famous marks.312 Only in the 1990s

brand in consumers’ minds); Laura R. Bradford, Emotion, Dilution, and the Trademark Consumer, 23 BERKELEY TECH. L.J. 1227, 1250 et seq. (2008) (explaining dilution in terms of emotional responses). 308 See, e.g., Bone, supra note 5, at 559 ("Blurring might force a consumer to reflect a bit longer before buying in order to sort out the different uses, but it is difficult to see how it impairs a mark's ability to communicate information"); David S. Welkowitz, Reexamining Trademark Dilution, 44 VAND. L. REV. 531, 542-46 (1991) (arguing that dilution does not cause any substantial harm); Klieger, supra note 167, at 821-22 ("The dilution cause of action […] is best described as a remedy in search of a wrong"), 840-41; Christine Haight Farley, Why We Are Confused About the Trademark Dilution Law, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1175, 1184 (2006) (arguing that dilution causes no harm). 309 See, e.g., Ty Inc. v. Perryman, 306 F.3d 509, 511 (7th Cir. 2002) ("There is little danger that the consuming public will think it's dealing with a branch of the Tiffany jewelry store if it patronizes [the Tiffany] restaurant. But when consumers next see the name "Tiffany" they may think about both the restaurant and the jewelry store, and if so the efficacy of the name as an identifier of the store will be diminished"); Landes & Posner, supra note 216, at 306-9 (suggesting three types of harm dilution may cause). 310 Morrin & Jacoby, supra note 307, at 267-68; WILLIAM LANDES & RICHARD POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 207 (2003). 311 See, e.g., Tiffany & Co. v. Boston Club, Inc., 231 F. Supp. 844 (D. Mass. 1964) ("The risk of detraction may be a risk of an erosion of the public’s identification of this very strong mark with the plaintiff alone, thus diminishing its distinctiveness, uniqueness, effectiveness and prestigious connotations"); Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 624-25 (2d Cir. 1983) ("The interest protected is not simply commercial goodwill, but the selling power that a distinctive mark or name with favorable associations has engendered for a product in the mind of the consuming public"); Ameritech, Inc. v. American Information Technologies Corp., 811 F.2d 960, 965 (6th Cir. 1987) ("Dilution […]corrodes the senior user’s interest in the trademark by blurring its product identification or by damaging positive associations that have attached to it"). See also MCCARTHY, supra note 19, at §§ 24:73, 24:118; Schechter, supra note 306, at 830–33. 312 McKenna, supra note 297, at 76 ("Schechter intuited the harm he described. There was no empirical evidence that KODAK was less effective as a mark for cameras if another company sold KODAK

46 researchers started looking for a scientific support to this intuition.313 Theories on memory suggest that information is stored in a network of nodes (concepts) connected by links (associations).314 When additional links are added to the network, the speed of retrieval is typically slowed.315 While associations added by brand extensions are stored in the same location as the core node, diluting associations are stored in a different location in memory: the consumer realizes that there is no connection between the two users of the brand name and stores this information accordingly.316 When such diluting associative link is added to the core node representing a famous brand, this inhibits the retrieval of the association with its first owner.317 In other words, having been exposed to a "Tiffany" restaurant, the consumer will create an independent node that links "Tiffany" with the restaurant. This additional node will interfere with the retrieval of the node linking "Tiffany" to jewels. Empirical experiments have indeed found that consumers need some more time to associate the brand with its core products after having been exposed to dilutive uses.318 Some commentators regard this evidence as a proof that dilution damage is real: the consumer incurs "internal search costs" or "imagination costs" when she has to think harder to link a trademark to its owner.319 The trademark owner is damaged, too, as the communicative function of his mark becomes less effective.320 Other bathtubs or cakes"); Simonson, supra note 307, at 150 ("To date, dilution has been explored almost solely by reference to intuition"). 313 See, e.g., id.; Morrin & Jacoby, supra note 307; Pullig et al., supra note 307; Maureen Morrin et al., Determinants of Trademark Dilution, 33 Journal of Consumer Research 248 (2006). 314 Morrin & Jacoby, id. at 266-68; Morrin et al., id. at 249. 315 Morrin & Jacoby, id. at 267; Morrin et al., id. at 249-50; Pullig et al., supra note 307, at 54-55. 316 Id. 317 Id. 318 Morrin & Jacoby, supra note 307, at 269-70, 272-74; Pullig et al., supra note 307, at 52, 61-62. 319 See, e.g., id.; Jerre B. Swann, Dilution Redefined for the Year 2002, 92 TRADEMARK REP. 585, 585 (2002) ("a growing body of knowledge as to how the mind stores and retrieves brand information—the cognitive psychology of trademarks—has immense potential for explaining dilution theory in a marketplace context"); Stacey L. Dogan & Mark A. Lemley, The Merchandising Right: Fragile Theory or Fait Accompli?, 54 EMORY L.J. 461, 493 (2005) ("properly understood, dilution is targeted at reducing consumer search costs, just as traditional trademark law is"); J. Thomas McCarthy, Proving a Trademark Has Been Diluted: Theories or Facts?, 41 HOUS. L. REV. 713, 727-28 (2004) ("there is potential harm to both consumers and mark owners if a once-unique designation loses its uniqueness.[…] Dilution increases the consumer's search costs by diffusing the identification power of that designation"); Richard A. Posner, When Is Parody Fair Use?, 21 J. LEGAL STUD. 67, 75 (1992) ("A trademark seeks to economize on information costs by providing a compact, memorable, and unambiguous identifier of a product or service. The economy is less when, because the trademark has other associations, a person seeing it must think for a moment before recognizing it as the mark of the product or service"); Jacob Jacoby, Dilution in Light of Victoria's Secret: The Psychology, Varieties and Measurement of Trademark Dilution, 9-11; (NYU Ctr. for Law & Bus. Working Paper No. CLB- 03-020, 2008), available at http://w4.stern.nyu.edu/-emplibrary/03-020.pdf. 320 See, e.g., McCarthy, id.; Swann, id. at 598-611 (dilution reduces a mark's "communicative clarity"); Mark A. Lemley, The Modern Lanham Act and the Death of Common Sense, 108 YALE L.J. 1687, 1704

47 scholars point out that the delay effect found in experiments was rather insignificant, 129 milliseconds on average.321 This negligible "damage" can hardly justify a legal doctrine seriously restricting the freedom of competition, they argue.322 I also believe that increasing the search costs by one tenth of a second hardly provides a convincing explanation to the legal intuition that dilution causes real damage. Moreover, there are many other wholly legitimate commercial practices that cause a similar damage. For instance, advertisements for familiar brands during a television program inhibit the memory of less familiar brands advertised during the same program.323 Intuitively, we feel that this kind of damage should not be prevented by the legal system. Why, then, a similar damage caused by dilution should? Furthermore, there is one rather salient discrepancy between legal assumptions in the field of dilution and the findings of empirical research. The doctrine of dilution protects only famous trademarks.324 The legal assumption is that the more famous the n.90 (1999) ("The information consumers can obtain and process is in part a function of how clear the association between mark and product remains in their minds; 'clutter' therefore imposes real costs on consumers"). 321 For a comprehensive discussion of this topic see Rebecca Tushnet, Gone in Sixty Milliseconds: Trademark Law and Cognitive Science, 86 TEX. L. REV. 507, 509 et seq. (2008) ("Consumers allegedly have more difficulty recalling, recognizing, and producing a diluted trademark, and correspondingly are less likely to purchase products or services branded with that mark.[…] Yet in the real world, proof that response delays persist over any appreciable time is limited. Nor do we know at what point a response delay becomes enough to change a purchase decision"). See also Assaf, supra note 42, at 47- 48 ("research shows that dilutive uses increase the response time for a trademark by about 125 milliseconds, which can hardly be viewed as a serious increase in search costs"); Robert Bone, A Skeptical View of the Trademark Dilution Revision Act, 11 INTELL. PROP. L. BULL. 187, 192-93 (2007) ("The most well known study comparing response times for undiluted and diluted marks reported about a 125 millisecond difference. [I]t is difficult to see how 125 milliseconds adds much in the way of search costs. Furthermore, actual market settings often have additional cues that facilitate rapid consumer identification and retrieval and could offset some of the lag time measured in the laboratory"); Austin, supra note 219, at 895-96 ("If dilution imposes an imagination "cost," it follows that the ordinarily prudent consumer is somebody who prefers to have her imagination unburdened by conflicting messages about brands. But this is not necessarily so, or even more likely so"); Rochelle Cooper Dreyfuss, Reconciling Trademark Rights and Expressive Values: How to Stop Worrying and Learn to Love Ambiguity, in TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH 261 (Graeme B. Dinwoodie & Mark D. Janis eds., 2008). 322 Id. For a discussion see Barton Beebe, Intellectual Property Law and the Sumptuary Code, HARV. L. REV. 809, 849-851 (2010). Another interesting argument against the need to protect the consumer from "imagination costs" was made by Graeme Austin: "If dilution imposes an imagination "cost," it follows that the ordinarily prudent consumer is somebody who prefers to have her imagination unburdened by conflicting messages about brands. But this is not necessarily so, or even more likely so": Austin, supra note 219, at 895. See also Dogan, supra note 23, at ("Extending dilution rights to all marks bearing any associational relationship to famous ones exceeds the narrow objectives of the statute, at a significant societal cost"); Bradford, supra note 307, at 1247 ("What is missing in trademark decisions and commentary is a clear explanation of why mental association of two unrelated businesses, which may infinitesimally increase consumer’s internal mental search times, is likely to cause any […] change in conception or behavior"). 323 Robert J. Kent & Chris T. Allen, Competitive Interference Effects in Consumer Memory for Advertising: The Role of Brand Familiarity, 58 THE JOURNAL OF MARKETING 97, 102-3 (1994). 324 MCCARTHY, supra note 19, at § 24:87.

48 mark, the more it deserves protection against dilution.325 Yet, theories on memory lead to an opposite conclusion. Researchers explain that famous marks, with which the consumer is very familiar, are stored in strong cognitive networks that are frequently and repeatedly activated, while less familiar brands are stored in networks that consist of weaker associations.326 Therefore, weaker brands are more likely to suffer from a diluting use than famous brands.327 Experiments have demonstrated that weaker brands are indeed much more vulnerable to the harmful effects of dilution.328 Very familiar brands, such as "Coca-Cola," "Hyatt," "Avon" and "Continental Airlines," are largely immune from dilution.329 Yet, these very brands are most extensively protected against it.330 For instance, while the "Hyatt" trademark for hotels has been legally protected against dilution supposedly caused by its use in relation to legal services,331 an empirical experiment has demonstrated that this specific mark is largely resistant to dilution.332 On the other hand, not very famous brands, such as Viking backpacks, are likely to be affected by dilutive uses,333 but are not legally protected against them.334 Literature has paid unduly little attention to this contradiction between the legal intuition and empirical findings.335 Yet, this contradiction is no minor disagreement between theory and practice. Rather, it reveals that the "internal search costs" rationale cannot sufficiently explain the legal intuition behind the dilution doctrine. The decision to protect against dilution marks such as Coca-Cola, but not such as

325 Id. 326 Morrin & Jacoby, supra note 307, at 270. 327 Id. at 271. 328 Id. at 272-74. 329 Id. 330 MCCARTHY, supra note 19, at § 24:87. 331 Hyatt Corp. v. Hyatt Legal Services, 736 F.2d 1153, 1157-58 (7th Cir. 1984). 332 Morrin & Jacoby, supra note 307, at 269-70. 333 Id. at 272. 334 MCCARTHY, supra note 19, at § 24:87. 335 But see Morrin & Jacoby, supra note 307, at 274 ("Thus, in a trademark dilution case, a second user being in a dissimilar product category should not lead triers of fact […] to conclude that there is less likelihood of harm to the first user; indeed, just the opposite may be true"); Tushnet, supra note 321 at 541-42 ("Fame may preserve the unidirectionality of associations from a junior brand to a senior by keeping the senior brand's own associations at the forefront of consumers' minds. These results suggest that legal protection for strong marks is unnecessary"); Klieger, supra note 167, at 846 ("In scrutinizing these eight fame factors, it is easy to overlook the more basic inquiry into why Congress selected "famous marks" as the class of marks deserving of dilution protection. Famous marks, after all, are […] the most impervious to dilution"); Barton Beebe, A Defense of the New Federal Trademark Antidilution Law, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1143, 1162 (2006) ("The problem is that trademark doctrine protects strong marks far more than it does weak marks; it treats the strongest brands as also the most fragile brands"); Bradford, supra note 307, at 1276-77; Mathias Strasser, The Rational Basis of Trademark Protection Revisited: Putting the Dilution Protection into Context, 10 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 375, 410-11 (2000).

49 Viking backpacks, is not a result of some inaccuracy of the legal doctrine: it is the very keystone on which the legal perception of dilution is based.336 The legal doctrine of dilution simply protects against some other damage, not against the damage caused by one tenth of a second increase in search costs. I suggest that the doctrine of dilution is largely inspired by magical thinking. This doctrine reflects the legal acceptance of the idea that famous brands—such as Coca- Cola, but not such as Viking backpacks—are sacred, miraculous objects that obey the special laws of magic. Some of the religious rules intended to maintain distance between the profane and the sacred are based on the tendency of the sacred toward positive contagion.337 For example, many religions forbid mentioning the God's name in profane situations.338 Because, according to the laws of magic, the name evokes the powers of the sacred, its mentioning in profane situations results in conflating the sacred with the profane. The doctrine of dilution is based on the intuition that famous trademarks should be protected against a similar process of profanation. The real harm of an additional, non-confusing association with a famous mark lies in impairing the psychological perception of the mark as unique and untouchable. This is how we should understand the purpose of dilution to protect the "selling power," the "unique character," and the "magic" of the famous mark.339 Thus, "Hyatt" legal services may not cause any delay in the recall of the famous hotel brand. Yet, such use is able to make the name "Hyatt" less distinctive, less unique and less "magical." Such use may pull the mark toward the domain of the common and the ordinary—that is, toward the realm of the profane. I believe that this kind of damage is the real subject matter of the doctrine of dilution. The protection this doctrine provides in distant product fields is another occasion of employing magical thinking in relation to famous trademarks and thus accepting their magical, sacred status.

(B.2) Negative Contagion In the previous section we have discussed the positive aspect of contagious magic. Another aspect of this magical law is the "negative contagion": according to this principle, a thing coming in contact with an impure entity becomes "polluted," impure

336 MCCARTHY, supra note 19, at § 24:87. 337 DURKHEIM, supra note 14, at 318. 338 Rozin & Nemeroff, supra note 27, at 225. 339 See supra notes 266-68.

50 in itself.340 For example, people commonly refuse to try on a sweater previously worn by a resented person, such as Hitler.341 The negative contagion is much more salient than the positive one: pollution always overcomes purity.342 For example, an equivalent positive action (such as a loved person wearing Hitler's sweater) can hardly purify the contaminated substance.343 In every religion, holy objects are eagerly protected from vulgar contact.344 In all religions there exists a group of interdictions () designed to preserve the respect of the sacred objects.345 Much in the same way, famous trademarks are also protected from vulgar contexts. This protection is provided by "tarnishment"—a later developed branch of the dilution doctrine. Tarnishment protects against "association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark."346 This type of infringement occurs when a famous trademark is used in a manner that clashes with its image. Typically, tarnishment is found when famous trademarks are placed in contexts of sexual activity,347 illegal drugs348 and other contexts dissonant with their wholesome image.349 Examples of trademark uses enjoined because of tarnishment include posters displaying the famous “Enjoy Coca- Cola” logo with the second word altered so as to read “Enjoy Cocaine,”350 t-shirts bearing an imprint resembling the General Electric trademark reading “Genital Electric,”351 a magazine parody of the Pillsbury's characters “Poppin Fresh” and “Poppie Fresh” engaged in sexual intercourse,352 a card looking similar to the credit card “American Express” and displaying the slogan “Don't Leave Home Without It”

340 Rozin & Nemeroff, supra note 27, at 209. 341 Id. at 211. 342 Id. at 209. 343 Id. at 211. 344 DURKHEIM, supra note 14, at 309. 345 Id. at 299-322 346 15 U.S.C. § 1125(c)(2)(C). 347 See, e.g., Edgar Rice Burroughs, Inc. v. Manns Theatres, 195 U.S.P.Q. 159 (C.D. Cal. 1976); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema Ltd., 467 F. Supp. 366 (S.D.N.Y.), aff'd, 604 F.2d 200 (2d Cir. 1979); Pillsbury Co. v. Milky Way Productions, Inc., 215 U.S.P.Q. 124 (N.D. Ga. 1981); Hasbro, Inc. v. Internet Entertainment Group, Ltd., 40 U.S.P.Q.2d 1479 (W.D. Wash. 1996); Toys “R” Us, Inc. v. Akkaoui, 40 U.S.P.Q.2d 1836 (N.D. Cal. 1996); Kraft Foods Holdings, Inc. v. Helm, 205 F. Supp. 2d 942 (N.D. Ill. 2002). 348 See, e.g., Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D. N.Y. 1972); Coca-Cola Co. v. Alma-Leo U.S.A., Inc., 719 F. Supp. 725 (N.D. Ill. 1989); NBA Properties v. Untertainment Records LLC, 1999 WL 335147 (S.D. N.Y. 1999). 349 See, e.g., Original Appalachian Artworks, Inc. v. Topps Chewing Gum, 642 F. Supp. 1031 (N.D. Ga. 1986); Eastman Kodak Co. v. Rakow, 739 F. Supp. 116 (W.D. N.Y. 1989); Hormel Foods Corp. v. Jim Henson Productions, Inc., 73 F.3d 497 (2d Cir. 1996). 350 Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D. N.Y. 1972). 351 General Electric Co. v. Alumpa Coal Co., 205 U.S.P.Q. 1036 (D. Mass. 1979). 352 Pillsbury Co. v. Milky Way Productions, Inc., 215 U.S.P.Q. 124 (N.D. Ga. 1981).

51 with a condom concealed in a small pocket,353 t-shirts reading “Buttweiser” in an imprint resembling “Budweiser,”354 the words “New York New York Slot Exchange” displayed on a replica of the facade of the New York Stock Exchange Building355 and “Kodak” as a stage name of a comedian using humor relating to bodily functions and sex.356 The protection against tarnishment distinguishes trademarks with an exceptional status in the liberal landscape of the US legal system. There is no other example of an entity being legally protected from negative associations. For the sake of comparison, the flag and other official insignia of the United Stated do not enjoy similar protection.357 Neither do people: libel and defamation protect only against provably false statements of fact.358 The Supreme Court has repeatedly held that this rule is mandated by the First Amendment.359 It assures that public debate will not suffer for lack of "imaginative expression" or "rhetorical hyperbole."360 Satire, caricature, parody and other offending publications do not fall into the scope of libel or defamation, since such publications do not constitute statements of fact.361 For instance, when a magazine depicted the first sexual encounter of a nationally known television commentator as “a drunken incestuous rendezvous with his mother in an outhouse,” the court declined the action for libel.362 The parody was only a rhetorical hyperbole and could not reasonably be understood as a statement of fact, it

353 American Express Co. v. Vibra Approved Laboratories Corp., 10 U.S.P.Q.2d 2006 (S.D.N.Y. 1989). 354 Anheuser-Busch, Inc. v Andy's Sportswear, Inc., 40 U.S.P.Q.2d 1542 (N.D. Cal. 1996). 355 New York Stock Exchange, Inc. v. New York, New York Hotel LLC, 293 F.3d 550 (2d Cir. 2002). 356 Eastman Kodak Co. v. Rakow, 739 F. Supp. 116 (W.D. N.Y. 1989). 357 For instance, flag burning is regarded as a form of constitutionally-protected speech: see, e.g., United States v. Eichman, 496 U.S. 310, 318-19 (1990); Texas v. Johnson, 491 U.S. 397, 420 (1989). For a discussion of a related topic see Assaf, supra note 42, at 21-24. 358 See, e.g., Pring v. Penthouse Intern., Ltd. 695 F.2d 438, 440 (10th Cir.1982); Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69 (1986); Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988); Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-20 (1990); Patrick v. Superior Court (Torres), 27 Cal. Rptr. 2d 883, 886 (App. 4th Dist. 1994); Victoria Square, LLC v. Glastonbury Citizen, 49 Conn. Supp. 452, 454 (Super. Ct. 2006). 359 See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 325, 339 (1974) ("Under the First Amendment there is no such thing as a false idea"); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69 (1986) ("at least where a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false"); Hustler Magazine v. Falwell, 485 U.S. 46, 50-51 (1988) (holding that the First Amendment precludes liability for a publication that "could not reasonably have been interpreted as stating actual facts about the public figure involved"); Lewis v. Philadelphia Newspapers, Inc., 833 A.2d 185, 192 (2003) ("First Amendment concerns compel the plaintiff to prove, as an additional element, that the alleged defamatory statement is in fact false"). 360 Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990). 361 See MARGARET E. O'NEILL, LIBEL AND SLANDER § 156 (2009) 362 Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

52 reasoned.363 Similarly, when Andrea Dworkin, a radical feminist strongly opposed to pornography, appeared in a series of sexually explicit cartoons and given the epithet "asshole of the month," the court found no defamation, since no actual statements of fact were made.364 In another case, a humorous publication implying that a lawyer serves his customers illegal drugs was found non-actionable.365 The vast difference between defamation and tarnishment cases is readily apparent. Put simply, while placing a living person in a context of sex or illegal drugs is permitted, doing the same to a famous trademark is forbidden. The protection against tarnishment is exceptional in the legal landscape not only because of the far-reaching restriction it imposes on free speech by banning non-factual rhetorical hyperbole—of this much has been written.366 Tarnishment is no less remarkable because of its deviation from the general legal assumption of human rationality. As discussed above, while dealing with claims of misleading advertising, courts presume that a rationally thinking person is not influenced by non-factual statements.367 The same presumption is evident in defamation cases, too. Yet, in tarnishment cases, courts choose a basically different position, assuming that people are influenced by uses that simply put famous trademarks in vulgar or negative contexts, without making any statements of fact. Here, again, courts employ Spinozian logic, while the legal system is generally based on Cartesian view. Of course, not all trademark parodies are restricted as tarnishment. Parodies that convey graspable critical messages on the trademark or its owner are allowed.368 Commentators note in this context that while the trademark owner can effectively

363 Id at 57. 364 Ault v. Hustler Magazine, 860 F.2d 877 (9th Cir. 1988). 365 Catalfo v. Jensen, 657 F. Supp. 463 (D.N.H. 1987). 366 See, e.g., Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397, 402-03, 423-24 (1990); Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 TEX. L. REV. 1853, 1866 (1991); Keith Aoki, How the World Dreams Itself To Be American: Reflections on the Relationship Between the Expanding Scope of Trademark Protection and Free Speech Norms, 17 LOY. L. ENT. L.J. 523, 545 (1997); Sonia K. Katyal, Performance, Property, and the Slashing of Gender in Fan Fiction, 14 AM. U. J. GENDER SOC. POL'Y & L. 461, 464 (2006). 367 See above, Part 2. 368 See, e.g., WHS Entm't Ventures v. United Paperworkers Int'l Union, 997 F. Supp. 946 (M.D. Tenn. 1998) (flyers that listed violations of a saloon and included a parody of the saloon's trademark were not found to violate the mark); Mattel, Inc. v. MCA Records, Inc., 28 F. Supp. 2d 1120 (C.D. Cal. 1998) (a song "Barbie Girl" that mocked the brand values symbolized by the "blond bimbo girl" whose "life is plastic" was held not to infringe the "Barbie" trademark); Yankee Publ'g Inc. v. News Am. Publ'g Inc., 809 F. Supp. 267 (S.D.N.Y. 1992) (trademark infringement was denied where a magazine used a deviated imitation of the Old Farmer's Almanac, which is associated with rusticity and thrift, as a comment on the slowing economy). For more examples and discussion see Assaf, supra note 42, at 62- 71.

53 rebut criticism, the harm caused by putting a trademark in an unwholesome context, such as "Enjoy Cocaine" or "Genital Electric," cannot be remedied by "more speech."369 While this observation is most probably true, it can hardly justify the legal protection against tarnishment. Thus, Ms. Dworkin, too, could do nothing to confute the epithet "asshole of the month" or her appearance in the sexually explicit cartoons. Yet, this did not lead the court to conclude that she should be protected against this kind of speech. Similarly, as noted above, non-factual advertising claims are also effective exactly because of the fact that the consumer cannot rebut them.370 And yet, the general presumption of human rationality precludes the restriction of such claims.371 How, then, is tarnishment different? I submit that tarnishment is different in that it applies to famous brands, and the mysticism created around them has been unconsciously internalized by the legal system. Apparently, neither courts nor the federal legislator are immune from the influence of magical advertising. Trademark law is a unique area where damage caused by appeals to irrational, magical thinking gives rise to legal claims. It is important to understand that the damage caused by "Enjoy Cocaine" or "Genital Electric" is so severe because of the rules of negative contagion. In addition to being non-refutable, these expressions cannot be neutralized by image-enhancing advertising, such as "Coca-Cola—Open Happiness" or "GE— Imagination at Work." This is because negative contagion has especially powerful effects: in magical thinking, pollution always overcomes purity.372 Although it's a legal truism that "trademark is not a ," protecting famous marks from the impure touch of negative contagion does resemble a religious interdiction, a taboo. As Durkheim notes, interdictions designed to protect things from vulgar contacts necessarily imply sacredness of these things: such interdictions preserve the respect of the sacred.373 Therefore, protecting famous trademarks against vulgar contexts necessarily implies accepting their sacred character. Tarnishment thus echoes the basic rule of all religions, according to which "the sacred thing is par excellence that which the profane should not touch, and cannot touch with impunity."374

369 Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158, 202 (1982); Assaf, supra note 42, at 69. 370 See above, Part 1(B). 371 See above, Part 2. 372 Rozin & Nemeroff, supra note 27, at 209. 373 DURKHEIM, supra note 14, at 301. 374 Id. at 40.

54 A further support to the idea that tarnishment is based on an essentially religious way of thinking may be found in an analogy to the crime of blasphemy. Throughout the 18th-19th centuries, the crime of blasphemy was based on the theory that Christianity was part of the law of the land in the UK as well as in the USA.375 Blasphemy consisted in any word or deed which exposed Jesus Christ, the Christian religion, or the Holy Scriptures, to contempt and ridicule, or robbed official oaths of any of their sanctity.376 While blasphemy punished publications such as pamphlets mocking Christ's arrival in Jerusalem377 and expressions such as "Jesus Christ was a bastard, and his mother must be a whore,"378 attacks on religion were not forbidden altogether. Courts recognized a general rule that "if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy."379 A similar rule can be observed today in relation to famous marks: it is permitted to decently criticize them, but not to expose them to ridicule. The logic behind the two provisions is very similar: both assume that decent critique can provoke thoughts and discussions, but it does not diminish the respect of the thing being criticized, while pure mocking does. Both rules are based on the logic of the magical law of negative contagion and both mark the object of their protection with a very special status. This resemblance to the crime of blasphemy best illustrates the point that, to some extent, famous brands are legally treated as sacred things.

5. SHOULD THE LEGAL SYSTEM PROTECT THE "MAGIC" OF BRANDS? Thus far, this article has attempted to demonstrate two things. First, it has submitted that advertising promotes religious-like beliefs about brands. Second, it has argued that trademark law applies the laws of magical thinking while protecting famous brands, thus essentially accepting the perception of brands as sacred things and endorsing the totemic religion created in advertising.

375 See, e.g., Taylor's Case, 86 Eng. Rep. 189 (K.B. 1676); Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824); Commonwealth v. Kneeland 37 Mass 206 (1838); State v. Chandler, 2 Del. (2 Harr.) 553 (Del. 1837); City Council of Charleston v. Benjamin, 33 S.C.L. (2 Strob.) 508 (1846); Shover v. State, 10 Ark. 259 (1850); Bell v. State, 31 Tenn. 41 (1851); In re Granger, 7 Phila. Rep. 350, 355 (1870); Melvin v. Easley, 52 N.C. 378 (1860); Goree v. State, 71 Ala. 7 (1881). For a historical review see Stuart Banner, When Christianity Was Part of the Common Law, 16 LAW & HIST. REV. 27 (1998). 376 State v Mockus, 113 A 39, 43 (1921). 377 King v. Gott, 16 Crim. App. 87 (1922). 378 People v. Ruggles, 8 Johns. 290 (N.Y. 1811). 379 Regina v. Ramsay and Foote, 15 Cox Crim. Cas. 231, 238 (Q.B. 1883). See Note, Blasphemy, 70 COLUMBIA L. REV. 694, 699 (April 1970).

55 Now it is time to ask whether such legal attitude is desirable. I do not intend to suggest that the religion of brands promoted by advertising is a fraud. In fact, it may be argued that the magical powers of brands are entirely real. As mentioned above, an advertisement may make us believe that a bitter coffee is not bitter or that a diluted orange juice with vinegar tastes good.380 While it may be said that such advertising is misleading, it can just as well be argued that such advertising creates better-tasting products. The question whether there exists any objective reality, i.e. another reality than what is perceived by one's senses, has been subject to philosophical debates for centuries.381 If we choose a solipsistic position that nothing exists outside a person's mind,382 we may come to the conclusion that brands produce real and valuable effects. Just like churinga makes a sick person feel better, brings courage and power, so too brands may bring a feeling of exclusivity, self-confidence, and even make a person happier. Besides, as discussed above, famous brands may evoke strong feelings. This, too, may be regarded as a positive effect: these feelings are entirely real and perhaps desirable for the consumer.383 In fact, the belief in magical effects of brands is not very different from any other religious or magical belief. Such beliefs cannot be said to be true or false, and, as they are found in all societies, they probably fulfill some basic human needs. It may be thus argued that the market simply delivers what consumers want: if advertising endows products with magical powers, it means that there exists consumer demand for these powers. It could further be argued that the sacred character of famous brands should be protected in order to preserve their magical effects. As Durkheim explains, the sacred character is added to things by human thought.384 A sacred thing is effective only to the extent that people believe in it. If they cease doing so, the magical powers of the sacred will vanish.385 If the legal system stops treating famous brands according to the

380 See above, Part 1(B). 381 While rationalists, such as Descartes, Spinoza, Kant and Leibniz argue that we have knowledge of some truths in a particular subject area, as part of our rational nature, empiricists, such as Locke, Berkeley and Hume believe that we have no source of knowledge other than sense experience: see THE STANFORD ENCYCLOPEDIA at http://plato.stanford.edu/entries/rationalism-empiricism. 382 Solipsism denies that the human mind has any valid ground for believing in the existence of anything but itself: see BRITANNICA ONLINE ENCYCLOPEDIA, at http://www.britannica.com/EBchecked/topic/553426/solipsism. 383 See, e.g., Bone, supra note 5, at 555 ("the consumer's emotional response sometimes becomes an important component of the product itself"). 384 DURKHEIM, supra note 14, at 322-24, 345-46. 385 Id. at 345-46.

56 laws of magical thinking, the perception of brands as magical, sacred things might be shaken. This may be regarded as a genuine loss for the consumer: she will no longer be able to enjoy the magical effects of these brands. Several scholars have made similar arguments, suggesting that the positive psychological effects of brands on the consumer are beneficial and thus, deserve protection.386 Nonetheless, I believe that the need to preserve the psychological effects of brands, real as they may be, does not justify the broad protection currently provided by trademark law. All religious and magical beliefs provide similar benefits and yet, none of them is legally protected. Even Christianity, the religion of the majority in the United States, is no longer shielded against offensive attacks.387 Since the middle of the 20th century, the Supreme Court started recognizing the "neutrality" principle: according to this principle, the state must assume a neutral position in relation to religion.388 Accordingly, blasphemy statutes have been repeatedly struck down as

386 See, e.g., Elliot B. Staffin, The Dilution Doctrine: Towards a Reconciliation with the Lanham Act, 6 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 105 (1995) (arguing that trademark law should prevent unauthorized uses that diminish the psychological effects of a trademark's "commercial magnetism"); Bone, supra note 321, at 190 (explaining that protection against tarnishment is justified, since tarnishing use alters the feelings generated by the mark); Swann, supra note 319, at 615-18 (submitting that trademark images and identities satisfy consumer expectations beyond the physical characteristics of the product and hence, are entitled to protection); Shahar J. Dilbary, Famous Trademarks and the Rational Basis for Protecting "Irrational Beliefs", 14 GEO. MASON L. REV. 605 (2007) (arguing that consumers benefit from the intangible dimension of brands, such as fame, prestige, etc., and therefore, this dimension deserves legal protection); JAY DRATLER, LICENSING OF INTELLECTUAL PROPERTY § 11.03 (2008) (suggesting that brand identities should be protected, since they appear to be beneficial for the consumer); Strasser, supra note 335, at 412 et seq. But compare: Bone, supra note 321, at 192 (2007) ("The normative question, however, is why the law should protect a mark’s grip on consumers when that grip is due to factors other than information about the quality of the product); Dogan & Lemley, supra note 319, at 484-85 (asserting that trademarks should not be protected against unauthorized use on merchandising, the authors note: "The investment at issue in these cases is not investment in the quality of the underlying product, but investment in merchandising the brand itself"). 387 See CHARLES E. TORCIA, WHARTON'S CRIMINAL LAW § 513 (15th ed. 2009) and the sources cited in footnotes 81-82 ("In the early cases, to speak maliciously of the Christian religion constituted blasphemy on the theory that Christianity was part of the law of the land. This theory, […] came to be abandoned in later American law. Blasphemy came to be regarded as a crime not because the conduct was violative of a religious tenet, but because it tended toward a breach of the peace. To the extent that a blasphemy statute fails to embody this secular purpose, the constitutionality of the statute will be suspect"). 388 See, e.g., School Dist. of Abington Tp., Pa. v. Schempp, 83 S.Ct. 1560, 1574 (1963) ("In the relationship between man and religion, state is firmly committed to a position of neutrality and it is not within power of government to invade citadel of individual heart and mind whether its purpose or effect be to aid or oppose, to advance or retard"); Epperson v. State of Ark., 89 S.Ct. 266, 270 (1968) ("The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion"); State v West, 263 A2d 602, 604 (1970) ("the provisions of the First Amendment require the States and the Federal Government to assume a 'neutral position' with respect to an individual and his religion"); Walz v. Tax Commission of City of New York, 90 S.Ct. 1409, 1411-12 (1970) ("The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion"). See also id.

57 unconstitutional to the extent they aimed to preserve and perpetuate the Christian religion.389 Thus, while no religious symbols enjoy legal protection of their sacred status, famous brands largely do. Obviously, this is not because the magical aura of a brand is considered to be more socially beneficial than the halo of a religious symbol. What, then, could explain such a discrepancy? I dare speculate that the main rationale behind the legal intuition that brands should be protected against the erosion of their magic, while religious symbols should not, lies in the commercial character of brands. In contrast to the sacred character of a religious symbol, the magical aura of a brand is created by a purposeful and substantive financial investment of a private corporation. This aura constitutes a very valuable economic asset for the corporation. Yet, on a close look, this rationale does not hold water. The mere fact that something is valuable and costly to create, does not mean that it should be protected.390 The legal system generally presumes that copying, imitation and other ways of exploiting the ideas of others are perfectly legitimate and even desirable forms of competition.391 Intellectual Property rights impose limited

389 TORCIA, supra note 387, at § 513; ROBERT A. BRAZENER, VALIDITY OF BLASPHEMY STATUTES OR ORDINANCES, 41 A.L.R.3d 519, §§ 2, 3[b] (1972). 390 In fact, such reasoning is circular: see Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 815 (1935) ("The vicious circle inherent in this reasoning is plain. It purports to base legal protection upon economic value, when, as a matter of actual fact, the economic value of a sales device depends upon the extent to which it will be legally protected"); Assaf, supra note 42, at 75 ("It cannot be argued that the property right of the trademark owner is the right to protect the economic value of the trademark, since its value is the outcome of the legal protection"); Austin, supra note 219, at 862-63 ("It is one thing to suggest that building a brand takes creative effort; it is another to determine whether and why firms should be protected against appropriation of all or most of the value such efforts produce"); Mark A. Lemley, The Modern Lanham Act and the Death of Common Sense, YALE L.J. 1687, 1709 (1999) ("it does not follow that because something is valuable it must be owned"); Klieger, supra note 167, at 864. But compare Jerre B. Swann, An Intuitive Approach to Dilution, 89 TRADEMARK REP. 907, 912 et seq. (1999) (arguing that the power of brands to stimulate sells is valuable and hence, deserves protection); Steve Hartman, Brand Equity Impairment – The Meaning of Dilution, 87 TRADEMARK REP. 418, 422-23 (1997) (arguing that dilution should protect against the impairment of brand equity). 391 See, e.g., American Safety Table Co. v. Schreiber, 269 F.2d 255, 272 (2d Cir. 1959), cert. denied, 361 U.S. 915 (1959) ("Imitation is the life blood of competition. It is the unimpeded availability of substantially equivalent units that permits the normal operation of supply and demand to yield the fair price society must pay for a given commodity"); B. H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1259 (5th Cir. 1990) ("Outright copying is often a civilizing rather than a cannibalizing folkway. The world would be a duller place without the originators, but it would not work without the copyists"); Aromatique, Inc. v. Gold Seal, 28 F.3d 863, 875 (8th Cir. 1994) ("[the defendant] is free to copy unprotectable features. Such competition is the essence of our free-market economic system"); Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619, 640 (6th Cir. 2002) ("copying preserves competition, which keeps downward pressure on prices and encourages innovation"). See also MCCARTHY, supra note 19, at § 1:28; Dogan & Lemley, supra note 216, at 1230.

58 restrictions on this general rule of free competition.392 These rights are generally granted for the purpose of encouraging creation of the protected intangible assets.393 Trademark rights in particular are traditionally granted in order to encourage the trademark owner to invest in the quality of his goods, thereby creating and maintaining the goodwill of his business.394 This purpose is entirely satisfied by protection of the purely informative function of the mark, that is, by merely protecting trademarks from conscious and meaningful consumer confusion. To make a case for legal protection of an additional asset—the magical aura of the trademark—it should be demonstrated that our society has a sufficient interest in encouraging its creation at the significant expense of restricting free speech and free competition.395 Furthermore, Intellectual Property rights are primarily granted in order to solve market failures.396 The legal assumption is that had copyright, patent and trademark rights not existed, the market would not provide enough incentive for creating artistic works, technological inventions and business goodwill.397 Thus, in order to justify the legal protection of the magical aura of brands, it must be shown that this protection is necessary to ensure a sufficient supply of this asset. Even assuming that people sufficiently benefit from believing magic, it can hardly be argued that the protection currently provided by trademark law is needed to guarantee the supply of magical objects or magical beliefs. For hundreds, if not thousands of years, people held all kinds of magical beliefs without any intervention of the legal system. Today, too, religions and other mystical teachings seem to provide a great variety of such beliefs. The sphere of magical beliefs thus does not seem to suffer from any "market failures," which could justify a legal intervention.

392 MCCARTHY, id. at § 1:2 ("[Intellectual property rights] must always be viewed as protected enclaves situated in an environment governed by the basic policy of free copying"). 393 See, e.g., Graham v. John Deere Co., 383 U.S. 1, 9 (1966). 394 MCCARTHY, supra note 19, §§ 2.3-2.4. 395 See Bone, supra note 5, at 619-20 (making a similar argument in relation to the emotional value of trademarks); Klieger , supra note 167, at 862 (arguing that dilution protection encourages companies to invest in the creation of intangible associations that add no real value to the product). 396 See, e.g., Dogan & Lemley, supra note 216, at 1230-31; Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1610 (1982) ("Economists ordinarily characterize intellectual property law as an effort to cure a form of market failure stemming from the presence of 'public goods' characteristics"); HERBERT HOVENKAMP, THE ANTITRUST ENTERPRISE: PRINCIPLE AND EXECUTION 228 (2005) (explaining that intellectual property laws are "a very elaborate government effort to correct market failure"); Shubha Ghosh, Carte Blanche, Quanta, and Competition Policy, 34 J. CORP. L. 1209, 1214 (2009) ("Intellectual property creates property rights to resolve market failures in the market for information. These property rights allow markets for information to be created that can in turn promote innovation"); Strasser, supra note 335, at 424. 397 Id.

59 As discussed above, magical beliefs can reside in any object.398 Brands with magical dimensions probably generate more financial gain than any other magical objects. Thus, the market naturally provides greater incentives to create magical beliefs in brands than in anything else. This is evident from the eager efforts of advertising to channel our tendency toward magical thinking to brands. No other magical objects are advertised with the same intensity. Protecting the magical dimension of brands, the legal system makes the investment in these dimensions even more profitable, thus further directing the "market" for magical beliefs toward the supply of commercial brands. Such legal interference in the sphere of mysticism may hardly be justified. Moreover, protecting the magical aura of brands, but not of any other sacred objects amounts to favoring the totemic religion of brands over other religions, which may be at odds with the neutrality principle. Speaking more generally, the legal system usually assumes a neutral position in relation to irrational beliefs and, more broadly, to any beliefs not based on verifiable facts. In this article, we have seen two examples of this approach: the lack of any restrictions on advertising applying to irrational thinking and the exclusion of non- factual statements from the scope of the defamation tort.399 This choice to ignore the human tendency to be influenced by factors other than factual information is consistent with the general legal assumption of human rationality.400 Although this assumption is essentially unrealistic and may turn out to be unsuitable in certain contexts, I believe it should not be abandoned altogether. The legal assumption of human rationality reflects the general reluctance of the legal system to enter the shaky domain of our latent and unconscious motives, to analyze our minds and souls. And it does make generally much sense to leave this domain outside the reach of legal regulations. It is a part of human dignity to be treated as a rational being, and not as an organism performing largely predictable psychological reactions. While protecting the "magic" of brands, trademark law essentially abandons the presumption of human rationality. Being concerned with the erosion of the unique character of a brand caused by subliminal confusion or non-confusing associations, the legal system enters an area it should generally avoid. If asked, most people would probably say that an "Enjoy Cocaine" poster would not change their opinion on Coca-

398 DURKHEIM, supra note 14, at 323-24. 399 See above, Parts 2 and 4(B2). 400 See supra note 104.

60 Cola drinks, and a "Lexus" face cream would not alter their views on Lexus cars. And probably, they would be wrong. Empirical experiments will likely show that such uses modify the associative networks existing in our minds in relation to these brands. Maybe, we cannot even resist such modifications. Nevertheless, this is not a sufficient reason for the legal system to intervene. By the same token, we probably can't help generating positive associations with Bayer after having seen an advertisement claiming that it "works wonders," or generating negative associations with Andrea Dworkin after having seen caricatures depicting her as the "asshole of the month." Yet, the legal system neither considers the former expression misleading nor the latter defamatory, and rightly so. Although the problem of the inconsistent standards of consumer confusion could be solved by taking account of the tendency toward irrational thinking in the context of misleading advertising as well as in the context of trademark law,401 a much better solution is to ignore this tendency in both these contexts. The legal system should generally restrict the scope of its regulation to the level of rational communication and refrain from speculations about what happens inside our minds. Sometimes, special circumstances require deviations from this rule: for instance, when the psychological influence reaches the level of manipulation, such as in case of subliminal advertising, or when the influence has especially dire consequences for the individual or the society, such as in case of advertising for tobacco, alcohol, or weapons.402 But the commercial interest of corporations owning famous brands certainly does not justify deviation from the legal presumption of human rationality. The magical, sacred

401 See above, Part 4(A). For a related point see Rebecca Tushnet, Fighting Freestyle: The First Amendment, Fairness, and Corporate Reputation 50 B.C. L. REV. 1457, 1477 (2009) ("[T]rademark owners get to take advantage of every non-false sales pitch possible, including appeals to our emotions and the seductive likability of the familiar. But dilution protection, particularly protection against tarnishment, means that competitors […] cannot appeal to our negative emotions, and cannot use over- familiarity, disgust, or other emotions to get us to abandon a brand. To the extent that dilution actually does force competitors to fight on different terms, it might be subject to the viewpoint discrimination"). 402 And indeed, the legal system imposes restrictions on advertising under such circumstances. Thus, the FTC prohibited subliminal advertising in 1974: see FCC Public Notice, Broadcast of Information by Means of Subliminal Perception Techniques, 29 Rad. Reg. 2d (P & F) 395 (Jan. 24, 1974) (the FCC declared that attempts to convey information to viewers by transmitting messages below the threshold level of normal awareness are contrary to the public interest). Advertising for weapons is forbidden in many states, and courts have held such provisions constitutional: see, e.g., Biffer v. City of Chicago, 116 N.E. 182 (1917); Burton v. Sills, 53 N.J. 86 (1968). The Federal Cigarette Labeling and Advertising Act bans advertising of cigarettes on any "medium of electronic communication subject to the jurisdiction of the Federal Communications Commission": 15 U.S.C. § 1335 and the law in many states imposes substantial restrictions on outdoor advertising for tobacco and alcohol: see RODNEY A. SMOLLA, SMOLLA & NIMMER ON FREEDOM OF SPEECH § 20:24 (2010).

61 character of brands exists only in the associative networks of our minds. Corporations may assume no rights to this territory. Trademark law should return to its initial purpose of protecting trademarks as informational devices. It should treat the consumer as a rational being, who uses trademarks as means of accumulating information about the various products, as tools that allow her making an educated purchasing decision and save her (real) search costs.403 Trademark law should stop being concerned with the psychological benefits trademarks might bring and, more generally, it should stop attempting to grasp what happens in the depths of the consumer's mind. Third parties should be enjoined from using a famous trademark only when the use causes conscious and meaningful consumer confusion.404 The figure of the "reasonable consumer" employed in the field of misleading advertising should equally apply to the field of trademark infringement: only when the use in question is likely to deceive the consumer, it should be restricted. By contrast, the field of associations famous brands evoke should be left outside the reach of legal regulation, even if these associations have significant economic value.

CONCLUSION Having made a trip through the Wonderland of Brands, we return to Alice and the Queen. The Queen's view is, in a sense, much closer to reality: people have a surprisingly strong tendency to believe the impossible.405 This article has dealt with one specific aspect of this tendency—magical beliefs. However impossible, magical beliefs are very common in our modern, logic-oriented society.406 Alice's adventures in Wonderland themselves are the best illustration of how our ostensibly rational

403 For a similar argument see Austin, supra note 219, at 921-22 (submitting that trademark law should "reconstruct" the consumers as individuals who are better equipped to make buying choices). 404 See McKenna, supra note 297, at 117 ("Uses that do not cause confusion about quality […] do not obviously impact consumers' decision-making such that they should necessarily be actionable. Thus, rather than including all cases involving alleged confusion regarding any type of relationship, trademark doctrine ought to be structured to differentiate between types of confusion"); Glynn S. Lunney, Trademark Monopolies, 48 EMORY L.J. 367, 481 (1999) ("the issue of whether confusion should be actionable turns not merely on a factual analysis of whether confusion exists, but on a policy determination that the type of confusion present warrants legal intervention"); Mark A. Lemley & Mark McKenna, Irrelevant Confusion, 62 STAN. L. REV. 413 (2010) (arguing that trademark law should protect only against confusion that is actually relevant to purchasing decisions); Mark P. McKenna, Trademark Use and the Problem of Source, 2009 U. ILL. L. REV. 773, 825 (2009). 405 See above, Part 1(A)-(B). 406 Id.

62 minds readily accept magical ideas, such as that eating a mushroom can make one grow taller or shorter.407 In this article, I have focused on magical beliefs in the particular context of advertising and brands. We all know that advertising persuading us that products of a certain brand work should not be believed. Despite ads suggesting otherwise, our rational minds perfectly understand that Bayer does not work wonders, that Magic Secret cream can hardly cause any astringent sensation and that there is no happiness in a Coca-Cola bottle. And yet, because of our natural tendency toward magical thinking, the influence of such claims may be difficult to resist.408 Modern advertising largely attempts to direct our natural inclination to believe in magic toward brands of consumer goods. When it succeeds, brands take on magical dimensions. Like all magic, the magic of brands may have entirely real effects. For instance, the magic of Rolex may make one more self-confident; the magic of Coke makes it taste better than Pepsi; the magic of Tiffany raises women's heart rates.409 The legal approach in this field is somewhat contradictory. While dealing with advertising that builds up the magical aura of brands, the legal system adopts Alice's view and wholly ignores the human tendency toward irrational thinking. Since people are not supposed to believe the impossible, there are no restrictions whatsoever on attempts to make the consumer believe in the magic of brands.410 Yet, while protecting famous brands against unauthorized uses, the legal system radically changes its approach. Although the traditional purpose of trademark law is to protect brands as informational devices allowing rational purchasing decisions, this strictly functional view has long been abandoned. Today, trademark law essentially recognizes the magical dimension of brands as an entirely real and valuable asset, subject of private property and legal protection.411 Corporations invest much money and effort in creating the magic of their brands, and trademark law protects the outcome of this investment against misappropriation and injury. Doing so, it implicitly adopts the Queen's view that people can believe the impossible: it's only a matter of practice.

407 LEWIS CARROLL, ALICE'S ADVENTURES IN WONDERLAND, Chapter V: Advice from a Caterpillar (1865). 408 See above, Part 2. 409 See above, Part 3(A). 410 See above, Part 2. 411 See above, Part 4.

63 This inconsistent legal approach is obviously undesirable, but the question is, what view should the legal system choose – Alice's or the Queen's? Although empirical research has found much support for the Queen's view, this article has argued that Alice's approach should generally be preferred as a legal standard. The legal system is not a looking-glass. Its purpose is not to perfectly reflect every single trait of the real world. The legal system should regulate human behavior according to certain standards, which do not necessarily have to accurately reflect the human nature. Not all aspects of the human behavior should be subject to legal regulation. The legal system generally assumes human rationality.412 This presumption should not be abandoned. When special circumstances do not require otherwise, the legal system should treat people as rational beings, however unrealistic this assumption may be. The whole field of irrational, magical and religious beliefs should be generally left outside the scope of legal regulation. Such beliefs are neither verifiable nor falsifiable, and the legal system should refrain from taking sides in their respect. And usually, it does. For instance, both, preaching and attacking the Christian religion is legally allowed.413 In the past, this was different: while preaching the Christian religion was, of course, permitted, the crime of blasphemy prohibited mocking it. This asymmetry reflected the perception of that time, according to which Christianity was part of the legal system.414 Similarly, permitting to build a magical aura around brands and then restricting uses that may harm this aura essentially turns the belief in the magic of brands into part of the legal system. This result is undesirable. The legal system should assume a neutral position in relation to this kind of beliefs. Trademark law should stop attempting to determine the merits of its protection according to the actual consumer's perception of brands. Real as they may be, magical beliefs in brands should be left outside the scope of legal regulation. Trademark law should protect only the purely informational dimension of brands. It should treat the consumer as a rational being, who uses trademarks to make educated purchasing decisions. By contrast, associations, emotions and all sorts of irrational and magical beliefs brands evoke should have no legal significance.

412 See supra note 104. 413 See above, Part 4(B2). 414 Id.

64