Brand Fetishism

Abstract

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 the consumer’s heartstrings. Meanwhile, trademark law is intended to protect trademarks as informational tools reducing consumer’s 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 submits that trademark law should serve to discourage brand fetishism, and act to restore the original informative function of trademarks. Yet, as will be demonstrated, trademark law in practice supports and encourages brand fetishism. This article will survey the various doctrines in trademark law that, deliberately or not, result in this undesirable outcome, and suggest subsequent changes.

Keywords: trademarks, brands, branding, trademark law, licensing, naked license, collateral licensing, classical licensing, infringement, likelihood of confusion, merchandising, dilution, marketing research, consumer research, consumer psychology, intellectual property

JEL Classification: K10, K11, K20