Katya Assaf III, Hebrew University of Jerusalem, has published "Magical Thinking in Trademark Law." Here is the abstract.
People in all societies have a strong tendency toward magical thinking. This human tendency is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us beautiful, successful, happy, etc. Employing anthropological research, this article suggests that such advertising creates a system of beliefs closely resembling a totemic religion. In this religion, brands perform the role of sacred objects.
The article further demonstrates that trademark law supports and encourages the commercial religion of brands. Trademark law initially aims at preventing consumer confusion as to the source of goods. Yet, today famous trademarks are extensively protected against non-confusing associations. This article argues that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and various trademark doctrines, I suggest that famous marks are legally treated as magical, sacred objects. This approach amounts to legally endorsing the religion of brands. I submit that this result is undesirable and probably even unconstitutional in light of the neutrality principle.
A provocative and interesting paper. Download it from SSRN at the link.
Professor Assaf is also the author of Brand Fetishism, forthcoming in the Connecticut Law Review, and Dilution and the Law of Trademarks, 49 IDEA: The Journal of Law and Technology -- (2008).
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