Magical Thinking in Trademark Law

32 Pages Posted: 15 May 2010 Last revised: 31 Mar 2015

Katya Assaf III

Hebrew University of Jerusalem - Faculty of Law

Date Written: May 13, 2010

Abstract

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.

Suggested Citation

Assaf, Katya, Magical Thinking in Trademark Law (May 13, 2010). 37 Law & Social Inquiry 597 (2012). Available at SSRN: https://ssrn.com/abstract=1606907

Katya Assaf III (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus, 91905
Israel

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