Brand Fetishism
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View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by OpenCommons at University of Connecticut University of Connecticut OpenCommons@UConn Connecticut Law Review School of Law 2010 Brand Fetishism Katya Assaf Follow this and additional works at: https://opencommons.uconn.edu/law_review Recommended Citation Assaf, Katya, "Brand Fetishism" (2010). Connecticut Law Review. 84. https://opencommons.uconn.edu/law_review/84 CONNECTICUT LAW REVIEW VOLUME 43 NOVEMBER 2010 NUMBER 1 Article Brand Fetishism KATYA ASSAF This Article focuses on “brand fetishism”—the phenomenon of perceiving trademarks as spiritual entities rather than as informational devices. Modern corporations strive to create brands with personalities and souls, brands that tug at consumers’ heartstrings. Meanwhile, trademark law is intended to protect trademarks as informational tools reducing consumers’ search costs. This Article examines this dissonance between trademark law rationales and the current use of the corporate trademark. Research demonstrates that emotional branding results in mistaken quality judgments and hinders rational purchasing decisions by consumers, thereby distorting market competition. Therefore, this Article proposes that trademark law should serve to discourage brand fetishism, and should act to restore the original informative function of trademarks. Yet, as this Article demonstrates, trademark law in practice supports and encourages brand fetishism. This Article surveys the various doctrines in trademark law that, deliberately or not, result in this undesirable outcome, and suggests subsequent changes. 83 ARTICLE CONTENTS I. INTRODUCTION .................................................................................... 85 II. BRAND FETISHISM ............................................................................... 89 A. BACKGROUND: FETISHISM OF COMMODITIES AND TRADEMARK LAW ............................................................................ 89 B. THE EMERGENCE OF BRAND FETISHISM ............................................... 91 C. BRAND FETISHISM DEEPENS ................................................................. 96 D. BRAND EXTENSIONS ............................................................................. 98 E. BRAND MERCHANDISING .................................................................... 101 F. AN INTERMEDIATE CONCLUSION......................................................... 103 III. TRADEMARK LAW AND BRAND FETISHISM .............................. 103 A. SETTING THE SCENE ............................................................................ 103 B. WHY SHOULD BRAND FETISHISM BE DISCOURAGED? ........................ 107 IV. HOW DOES TRADEMARK LAW SUPPORT BRAND FETISHISM? ......................................................................... 110 A. THE PRIMARY MARKET ...................................................................... 110 B. COLLATERAL MARKETS ...................................................................... 123 C. MERCHANDISING MARKETS ................................................................ 140 V. ARE THERE ALTERNATIVE RATIONALES FOR SUPPORTING BRAND FETISHISM? ......................................................................... 144 A. SHOULD BRANDS BE PROTECTED AS TOOLS OF PERSONAL COMMUNICATION? ......................................................................... 144 B. SHOULD BRANDS BE PROTECTED AS SOURCES OF IDEOLOGY, COMMUNITY, AND RELIGION? ........................................................ 146 VI. CONCLUSION ..................................................................................... 147 Brand Fetishism KATYA ASSAF* I. INTRODUCTION “What’s in a name? That which we call a rose By any other name would smell as sweet.”1 Shakespeare’s Romeo and Juliet famously criticizes the human tendency to focus on a name or appearance, and to disregard substance. After discovering that Romeo is of Montague stock, and hence her sworn enemy, Juliet realizes that a name is a meaningless convention. What matters is who someone actually is, and not what he is called. Through his tragic story of star-crossed lovers, Shakespeare implies that humankind’s natural tendency toward superficiality should be resisted, because it causes irrational and harmful behavior. To quote another common aphorism, one should not judge a book by its cover. In the world of trademarks too, there is sometimes a conflation between label and substance. The primary purpose of trademark law has traditionally been to protect trademarks as labels, as tools enabling the consumer to identify products of various manufacturers. That is, in the legal sense, a trademark is a name, a designation, and not the rose itself. Just as the word “rose” indicates a flower with certain characteristics, so too should a trademark indicate a product with a certain level of quality. In practice, however, trademark owners often strive to elevate form over substance—the trademark over the physical products it signifies. At times they succeed. For instance, consumers rate the taste of soda higher when it carries the name “Coca-Cola” than when it does not.2 Clothing tags have migrated from their hidden location inside the collar to the outside, grown exponentially in size, and transformed items of clothing into mere carriers * Assistant Professor, Law School, the Hebrew University of Jerusalem. I would like to thank Michael Birnhack, David Enoch, Wendy Gordon, Daphna Lewinsohn-Zamir, Barak Medina, Neil W. Netanel, Michal Shur-Ofry, Alexei Soma, Rebecca Tushnet, Steven Wilf, Helena Zakowska-Henzler, and Eyal Zamir for their invaluable comments, insights, and suggestions. 1 WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2, sc. 2. 2 See, e.g., Sanjoy Ghose & Oded Lowengart, Taste Test: Impact of Consumer Perceptions and Preferences on 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. [A] branded taste test resulted in Diet Pepsi being preferred by 23 per cent with Diet Coke being preferred by 65 per cent.”). 86 CONNECTICUT LAW REVIEW [Vol. 43:83 of the brand they represent.3 And the Harley-Davidson brand has been described as being so powerful as to be “in effect, a religious icon around which an entire ideology of consumption is articulated.”4 As early as 1942, Justice Frankfurter observed: “The protection of trade-marks is the law’s recognition of the psychological function of symbols.”5 Indeed, trademark law shines its spotlight on symbols, which at times carry with them strong psychological messages. Much of marketing research focuses on various strategies for building strong brands—brands that represent coherent sets of values and ideals, brands that evoke a consumer’s feelings, and most importantly, brands that guarantee a consumer’s loyalty.6 Much of academic consumer research is dedicated to revealing how consumers perceive brands.7 Although marketing and consumer research dealt directly with the subject of trademark protection, the legal literature has, for many years, largely ignored its insights. Until recently, interdisciplinary research in trademark law has focused primarily on law and economics. Only in the past few years have trademark scholars begun to venture into other disciplines.8 Important as it may be, economic analysis provides little insight into the ways many successful trademarks function today. Traditional economic analysis views trademarks as devices that provide product information and reduce consumer search costs.9 Yet, many consumers who are loyal to a certain brand of soft drinks or cigarettes, ostensibly because of the superior taste of the product, actually cannot distinguish their favorite brand in a blind taste-test.10 Moreover, consumer research 3 NAOMI KLEIN, NO LOGO 28 (2002). 4 John W. Schouten & James H. McAlexander, Subcultures of Consumption: An Ethnography of the New Bikers, 22 J. CONSUMER RES. 43, 50 (1995). 5 Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203, 205 (1942). 6 See infra Part II.B (discussing the emergence of brand fetishism). 7 See infra notes 44–66 and accompanying text (discussing various conclusions about brand conception from academic research). 8 See, e.g., Katya Assaf, The Dilution of Culture and the Law of Trademarks, 49 IDEA 1, 2–3 (2008) (suggesting a semiotic model to examine several doctrines of trademark law); Barton Beebe, The Semiotic Analysis of Trademark Law, 51 UCLA L. REV. 621, 623–24 (2004) (applying tools of semiotics to trademark law); Thomas R. Lee et al., Sophistication, Bridging the Gap, and the Likelihood of Confusion: An Empirical and Theoretical Analysis, 98 TRADEMARK REP. 913, 914–15 (2008) (using theoretical models from consumer psychology and an empirical study to examine the factors influencing consumer confusion); Maureen Morrin & Jacob Jacoby, Trademark Dilution: Empirical Measures for an Elusive Concept, 19 J. PUB. POL’Y & MARKETING 265, 265 (2000) (detailing an empirical study examining the psychological effects of trademark dilution and suggesting the adoption of cognitive science as a normative basis justifying anti-dilution protection); Jerre B. Swann, An Interdisciplinary Approach to Brand Strength, 96 TRADEMARK REP. 943, 945 (2006) (using consumer research to explain the extensive legal protection of strong marks). A notable step forward in this context is LIONEL BENTLY ET AL., TRADE