Academic journal article The Yale Law Journal

Breakfast with Batman: The Public Interest in the Advertising Age

Academic journal article The Yale Law Journal

Breakfast with Batman: The Public Interest in the Advertising Age

Article excerpt

   In an acquisitive society, the drive for monopoly advantage is a very
   powerful pressure. Unchecked, it would no doubt patent the wheel, copyright
   the alphabet, and register the sun and the moon as exclusive
   trade-marks.(1)

When Ralph Brown published Advertising and the Public Interest in 1948, the law of trade symbols was entirely a creature of the federal general common law. The new Lanham Trademark Protection Act had taken effect only months earlier;(2) the federal courts' interpretation of the code had yet to be written. Commercial television was still undergoing beta testing.(3) There was no Internet--not even in the pages of science fiction.(4) Computers barely existed. The ENIAC had just been built; the UNIVAC was yet to come.(5) In 1948, commercial advertising was entitled to no First Amendment protection whatsoever.(6) Neither the world of commercial advertising that matured along with the baby boom generation nor the legal framework within which we would try to constrain it was more than a possibility. Fifty years later, it seems remarkable how presciently Ralph's article described the policies and the arguments that would come to dominate the debate over the law of trade symbols today and how incisively it appraised them.

The past fifty years have seen fundamental changes in the nature of advertising and the value our society attaches to it. The legal boundaries of our protection and regulation of advertising have expanded as it has grown to be an ever more pervasive feature of our environment. Normative arguments that may have seemed uncontestable in 1948 appear more controversial in 1998. It would be surprising if a legal argument framed fifty years ago remained as persuasive today. But Ralph's analysis seems even more compelling, now that we have had a chance to see the world of advertising grow in the intervening years.

In Part I of this Essay, I recount Ralph Brown's justification for the rule that trade symbols' legal protection should be limited to cases of likely consumer confusion. Broader protection of trade symbols, affording legal armor to advertising's persuasive function, would yield no benefits to consumers and would disserve the public interest by shielding firms from healthy competition. In Part II, I discuss the expansion of trade symbol law over the past fifty years, as courts and Congress increasingly have disregarded Ralph's advice. In Part III, I describe shifts in American culture, legal attitudes, and business practices that accompanied--and to some degree explain--that doctrinal change. In particular, I point out that trade symbols have become enormously valuable, outshining in importance the products they identify. In Part IV, I urge that the independent value of trade symbols and advertising atmospherics today does not supply reasons for protecting them under the trademark laws. Rather, as I explain in Part V, a critical look at the role of advertising in our lives today reaffirms the importance of Ralph Brown's original prescription: Legal protection for trade symbols, in the absence of confusion, disserves competition and thus the consumer. It arrogates to the producer the entire value of cultural icons that we should more appropriately treat as collectively owned.

I. ADVERTISING AND THE PUBLIC INTEREST

In Advertising and the Public Interest, Ralph argued that decisions about what legal protection to afford trade symbols should be driven by an analysis of the degree to which advertising itself served the public interest. The public's chief interest lay in the promotion of competition through advertising, Ralph insisted, by providing information to potential consumers about the products they might choose to consume. Where the law enhanced or protected advertising's informative function, it encouraged competition and advanced the public interest.(7) Of course, advertising was designed by merchants who used it to do more than just supply useful information:

   Advertising has two main functions, to inform and to persuade. … 
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