The Nightmare of Dream Advertising

Advertisers are attempting to market to us while we dream. This is not science fiction, but rather a troubling new reality. Using a technique dubbed “targeted dream incubation” (TDI), companies have begun inserting commercial messages into people’s dreams. Roughly, TDI works by: (1) creating an association during waking life using sensory cues (for example, a pairing of sounds, visuals, or scents); and (2) as the subject is drifting off to sleep, the association is again introduced with the goal of triggering related dreams with related subject matter. Based on a 2021 American Marketing Association survey, 77 percent of 400 companies surveyed plan to experiment with dream advertising—or what this Article calls “branding dreams”—by 2025. As a therapeutic technique, TDI is being found by sleep and dream researchers to have various benefits such as improving sleep quality, stimulating creativity, and treating addiction. However, when advertisers hijack TDI for commercial purposes, serious harms emerge. These harms are most apparent when the practice of branding dreams is employed in connection with addictive products. But health, privacy, liberty, economic, and cultural concerns also exist more broadly. In fact, dozens of sleep and dream researchers have signed an open letter calling for “new protective policies” regarding dream advertising, lest “dreams become just another playground for corporate advertisers.” Such specifically tailored regulations may be welcome and helpful. However, this Article suggests that—at least in certain instances— the practice of branding dreams might already run afoul of existing advertising regulations. To this end, the Article advances two claims. First, dream advertising appears to fit the definition of subliminal messaging: advertisements “existing or functioning below the threshold of consciousness.” Second, particularly if dream advertising is considered a novel method of subliminal advertising, some forms of dream advertising may be ripe for enforcement as “deceptive acts or practices” under Section 5 of the Federal Trade Commission (FTC) Act

Visual Methaphor and Trademark Distinctiveness

Perhaps because words are the lawyer’s principal instrument, the law gives too little attention to visual images. Invoking Justice Potter Stewart’s infamous statement regarding the law’s inability to define obscenity, “I know it when I see it” is the standard for interpreting images in the law. A greater understanding of the ways in which images make meaning is needed, however, including in trademark law given our increasingly visual economy. This Article examines images in the context of trademark law’s inherent distinctiveness doctrine. While trademark law still lacks a coherent, uniform, and predictable framework for deciding the distinctiveness of visual image marks—logos and product packaging—it has long used the “imagination” test to effectively determine a word mark’s distinctiveness. Under the imagination test, immediately protectable word marks must operate in a metaphorical relationship to the words from which they are drawn (i.e., as figures of speech), requiring consumers to use their imagination to reach a conclusion as to the nature of the goods or services offered under the marks (e.g., “Klondike” for ice cream and “Greyhound” for a bus service). This makes sense because the first requirement of a valid trademark is that it be a “symbol,” and, as this Article shows, the basic characteristic of any symbol is its figurative quality. Research in conceptual metaphor theory finds, though, that metaphor is “primarily a matter of thought and action and only derivatively a matter of language.” Indeed, brands rely not just on verbal metaphor, but also on visual metaphor to differentiate themselves from competitors in the marketplace (e.g., Target’s “bullseye” and Starbucks’s “siren”). This Article thus claims that visual metaphor provides a figurative, cognition-based vehicle by which to extend trademark law’s imagination test of inherent distinctiveness from words to images. In doing so, it conceives of metaphorical association as a central consideration in analyzing the inherent distinctiveness of both word and image marks

Is the Word Consumer Biasing Trademark Law?

Our trademark law uses the term “consumer” constantly, reflexively, and unconsciously to label the subject of its purpose—the purchasing public. According to the U.S. Supreme Court, trademark law has “a specialized mission: to help consumers identify goods and services they wish to purchase, as well as those they want to avoid.” As one leading commentator puts it, “trademarks are a property of consumers’ minds,” and “the consumer, we are led to believe, is the measure of all things in trademark law.” Much criticism has been rightly levied against trademark law’s treatment of the consumer as passive, ignorant, and gullible. For instance, consumers are seen as requiring protection from any and all marketplace confusion and have no standing to sue under the Lanham Act. However, that a contributing factor to such treatment could be the linguistic bias stemming from the law’s label of the buying public as mere consumers—rather than, for instance, “citizens,” “persons,” “individuals,” or “humans”—has not, until now, been directly addressed. This Article urges those involved in trademark and advertising law—e.g., judges, lawyers, lawmakers, and scholars—to rethink our ubiquitous use of the derogatory consumer label. To this end, the Article first explores “consumer” as a dehumanizing, anti-ecological, and nonsensical metaphor for “one that utilizes economic goods.” It then examines social psychology experiments finding that use of “consumer” has potentially deleterious effects for society given the negative stereotypes that it engenders as a social categorization. The Article claims, by extension, that the implicit linguistic bias inherent in consumer rhetoric might contribute to trademark law defining the public in a manner that is patronizing, biased, insulting, and indulgent of likelihood-of- confusion claims. The Article suggests that we either work to phase out the “consumer” label and replace it with more appropriate terminology (e.g., “citizen”), or at least pause to acknowledge the word’s potentially biasing effects

Beyond Cannabis: Psychedelic Decriminalization and Social Justice

Psychedelics are powerful psychoactive substances which alter consciousness and brain function. Like cannabis, psychedelics have long been considered prohibited Schedule I substances under the Controlled Substances Act of 1970. However, via the powerful psychological experiences they induce, psychedelics are now being shown to be viable therapeutic alternatives in treating depression, substance use disorders, and other mental illnesses, and even to enhance the well-being of healthy individuals. In May 2019, Denver, Colorado became the first city in the country to decriminalize psilocybin (the active compound in “magic mushrooms”) — a potential major shift in the War on Drugs. Ballot initiatives for the decriminalization of psilocybin and similar substances are now reaching voters in other cities and states. What principles might justify this decriminalization — eliminating criminal penalties for, at a minimum, the use and possession — of psilocybin and other psychedelics? This Article provides background on psychedelics and a historic overview of the laws surrounding them. It then considers several potential justifications for decriminalizing psychedelics: (1) medical value; (2) religious freedom; (3) cognitive liberty; and (4) identity politics. Lastly, the Article proposes a reframed justification rooted in principles of social justice, namely neurodiversity

Published Decisions Based on Westlaw Key Number Searches in Right of Publicity, Trademark, Copyright, and Patent 2010-2021

Results of Westlaw key number searches in Right of Publicity (379 K383-409), Trademark (382 K1000-1800), Copyright (99 K220-1202), and Patent (291 K401-2094) for the years 2010 to 2021

Unmasking the Right of Publicity

In the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity—a transferable intellectual property right. The right has since been seen to protect the commercial value of one’s “persona”—the Latin-derived word meaning the mask of an actor. Among other frequent criticisms, the right of publicity is accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for a proprietary right in one’s personality. Why might Judge Frank have been motivated to fashion a transferable right in the monetary value of one’s public persona distinct from the psychic harm to feelings, emotions, and dignity rooted in the individual and protected under the rubric of privacy? Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through influential books including Law and the Modern Mind and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between public and private aspects of the personality supported his realist interpretation of lawmaking as a subjective and indeterminate activity. Indeed, though Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a tremendous amount of attention to the personality in his scholarly works. This Article suggests that the modern right of publicity’s aim, as perhaps intended by Judge Frank in considering his psychoanalytic jurisprudence, may be usefully understood through the psychoanalytic conception of the personality—one divided into public and private subparts. In the psychoanalytic sense, the term persona, or “false self,” is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions and subjective interpretations of reality anchored in their private shadow, or “true self.” Yet, the law’s continued reliance on this dualistic metaphor of the personality appears misguided, particularly as technology, internet, and new media increasingly blur the traditional distinctions between public and private. The Article thus concludes by examining intersubjective personality theory. Intersubjectivity could provide publicity law with a useful conceptual update given its view of the self and personality as a relational, contextual, and social construct, rather than a public-private dichotomy

Unmasking the Right of Publicity

In the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity as a transferable intellectual property right. The right of publicity has since been seen to protect the strictly commercial value of one’s “persona”—the Latin-derived word meaning the mask of an actor. Why might Judge Frank have been motivated to fashion a transferable right in the monetary value of one’s public persona distinct from the psychic harm to feelings, emotions, and dignity rooted in the individual and protected under the rubric of privacy? Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal traditions” through influential books including Law and the Modern Mind. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between public and private aspects of the personality supported his realist interpretation of lawmaking as a subjective and indeterminate activity. Indeed, though Judge Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a tremendous amount of attention to the personality in his scholarly works. In considering Judge Frank’s psychoanalytic jurisprudence, this Article suggests that the modern right of publicity’s aim, apart from privacy law, may be usefully understood through the psychoanalytic conception of the personality—one divided into public and private subparts. In the psychoanalytic sense, the term persona, or “false self,” is used to indicate the public face of an individual—the image one presents to others for social or economic advantage—as contrasted with their feelings, emotions and subjective interpretations of reality anchored in their private shadow, or “true self.” Yet, the law’s continued reliance on this dualistic metaphor of the personality appears misguided, particularly as technology, internet, and social media increasingly blur the traditional distinctions between public and private

Visual Metaphor and Trademark Distinctiveness

This Article examines images in the context of trademark law’s inherent distinctiveness doctrine. While trademark law still lacks a coherent, uniform, and predictable framework for deciding the distinctiveness of visual image marks—logos and product packaging—it has long used the “imagination” test to effectively determine a word mark’s distinctiveness. Under this doctrine, immediately protectable word marks must operate in a metaphoric relationship to the words from which they are drawn (i.e., as figures of speech), requiring consumers to use their imagination to reach a conclusion as to the nature of the goods or services offered under the marks (e.g., “Klondike” for ice cream and “Greyhound” for a bus service). This makes sense because the first requirement of a valid trademark is that it be a “symbol”, and, as this Article shows, the basic characteristic of any symbol is its figurative quality. Research in conceptual metaphor theory finds, however, that metaphor is “primarily a matter of thought and action and only derivatively a matter of language.” Indeed, brands rely not just on verbal metaphor, but also on visual metaphor to differentiate themselves from competitors in the marketplace (e.g., McDonald’s “golden arches” and Starbucks’s “siren”). This Article thus claims that visual metaphor provides a figurative, cognition-based vehicle by which to extend trademark law’s imagination test of inherent distinctiveness from words to images. In doing so, it conceives of metaphorical association as a central consideration in analyzing the inherent distinctiveness of both word and image marks