Magical Thinking in Trademark Law
Katya Assaf III
Hebrew University of Jerusalem
May 13, 2010
37 Law & Social Inquiry 597 (2012)
People in all societies have a tendency toward magical thinking. This human inclination is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us successful, happy, and fulfilled. In this article, I suggest that such advertising creates a system of beliefs resembling a totemic religion. In this religion, brands perform the role of sacred objects.
Trademark law initially aims at preventing consumer confusion. Yet, today, famous trademarks are extensively protected against nonconfusing associations. I argue in this article that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and trademark doctrines, such as the doctrine of dilution, I suggest that famous marks are legally treated as magical, sacred objects. This legal approach amounts to endorsing the commercial religion of brands.
Number of Pages in PDF File: 32Accepted Paper Series
Date posted: May 15, 2010 ; Last revised: November 12, 2012
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