This essay, written as a contribution to a symposium honoring the late Professor Ralph Sharp Brown, and published in Yale Law Journal in 1999, revisits Brown’s prescient 1948 article, Advertising and the Public Interest: Legal Protection of Trade Symbols. In Part I of the essay, I review 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 Brown’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.
The reinforcing and aversive consequences of customer experience. The role of consumer confusion
