September 28, 2005
Stealing Mickey's Mojo
Sooner or later, a blog on marketing and technology should link to Grant McCracken's blog, which is called This Blog Sits at the Intersection of Anthropology and Economics. McCracken is a very interesting and provocative anthropologist who studies popular culture and marketing. His work is uniquely insightful. He takes pop culture and marketing seriously, patiently seeking to understand it on its own terms, rather than jamming it into some ready-made theoretical box.
His most recent post, Disney and Other Mysteries of the Brand, talks about the special power of the Disney brand. McCracken thinks that Disney's new CEO, Robert Iger, is mistaken in his plans to allow downloads of Disney movies. McCracken believes that there is something special and unique about the Disney brand that makes people want to collect and own tangible embodiments of it. As McCracken puts it: "There is something about the thing itself that we, in marketing and in anthropology, do not fully understand. There is something about having your hands on the movie, even when this comes to you in the form of a cheesy plastic package. Parents and kids want their homes stocked with Disney favorites and they want them in a material form. We're not sure why." As is often the case with McCracken's work, this post inspires several different interesting lines of thought.
The thought I'm most interested in for the moment is the notion that Disney is a uniquely magical brand. Disney is one of those brands that is so infused with powerful positive associations that people really want to "possess" it--t-shirts, dresses, mugs, DVDs, etc. Lots of companies slap their trademarks on promotional junk, but people go out of their way to buy Disney stuff. There are a handful of other brands with that kind of power--for example, Coke and Harley Davidson.
If protection against trademark dilution is at all justified, it is justified for "magical" brands like Disney, Coke, and Harley Davidson. But I'm not sure the law has really figured out how to define that special "magic" or how to protect it. The concepts of “fame” and "distinctiveness" are poor stand ins for the special magic that Disney possesses, and the cause of action of “dilution” takes imprecise aim at the harm that special brands seek to prevent.
I have to confess: I love Disney. Other IP profs may see me as having an "Anakin" moment here, since Disney has emerged as symbolic public enemy number one for scholars concerned with the erosion of the public domain. I'm sorry, but Disney is special. I have a Mickey Mouse print in my office. Sure, in a nod to obligatory Gen X irony, it is a reproduction of the famous Air Pirates parody, so Mickey is depicted as a drug running airplane pilot. But it's still Mickey. Like so many other people, Disney has special associations for me. DISNEY—I’m a little kid, plunked down in a movie seat between my parents, and utterly entranced. DISNEY--It's 1976, I'm on a vacation to Disneyworld for which my family saved for three years. It’s worth every penny. DISNEY--It's now, and every time I share a new Disney DVD with my little girls, they light up with innocent joy. These kinds of associations are incredibly powerful. I suspect they help to explain why companies like Disney feel so inclined to seek especially strong protection for their creations, and why legislators and judges are often inclined to grant it.
When a client like Disney comes to a lawyer and complains that somebody is misusing their trademark, they likely don’t have concepts like trademark dilution in mind (unless they are in-house counsel). Since lawyers are problem-solvers rather than psychologists or philosophers, we simply use the tools that are most likely to get the job done. We construct a complaint that asserts our client’s trademark is “famous” and that the competing use will “cause dilution of the distinctive quality of the mark.” If it results in the offending party stopping, we are happy and so is the client.
Outside of the hubbub of litigation, however, it is worthwhile to pause to consider whether dilution really addresses the harm the client feels in such a case. More important, it is interesting to consider why legislators and judges are willing to give extra protection to strong brands. I suspect that trademark holders and policymakers are motivated by something a bit deeper than protecting the “distinctive quality” of a famous mark. Economic interests certainly figure into the explanation, but they hardly account for the vehemence with which some assert the need for such protection.
Certain brands have a special hold on our imagination. It likely takes an anthropologist like McCracken to explain why. If one takes brands seriously as a cultural phenomenon, one can see that some have acquired a talismanic significance. Their owners and others (like legislators) object to their defilement like an earlier culture might object to the mishandling of a ceremonial object. Sometimes we lawyers describe such a strong trademark as having “commercial magnetism.” That term is better than some alternatives, but I have often suspected that the term “mojo” might be far more apt. Like Austin Powers complaining that Dr. Evil has stolen his mojo”, the trademark owner complains that a diluting use is a theft of his trademark's mojo.
Yes, this may take us far a field of typical legal analysis and me way out of my area of expertise. Nevertheless, I think it explains some of the impulses underlying support for dilution. We ought to ask ourselves, however, whether our courts really ought to be in the mojo protection business. Disney and its employees are emotionally (and, of course, economically) invested in Disney’s marks. Many of us are also emotionally invested. That is why even a non-confusing, non-tarnishing use of a powerful brand may seem like a transgression worth addressing. As for a tarnishing use—one that associates a beloved brand with something scandalous—that seems even more necessary to redress. These impulses are understandable, but do we need to vindicate them legally? Because I perceive dilution as having irrational roots, I have always found its justification to be dubious. At the very least, perhaps we should restrict dilution not to marks that are just famous, but also require that they have “mojo.”
I'll leave the development of my multi-factor test for determining mojo to a future law review article.
Posted by Mark Schultz at September 28, 2005 01:11 PM | Trademark
As Eric knows, it's all about the thing! (Need I add: Groovy, baby.)
Posted by: Mike Madison at September 28, 2005 05:17 PM
Ah, yes. Michael is referring to his work on the importance of "things" in law. See his interesting paper on the topic at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=709121 . As I was thinking about this, Michael's work came to mind. It very much merits discussion.
As Michael describes, some trademarks have become "thingified." That is, they are thought of and treated as "things" that exist apart from their function of identifying the source of goods or services. Sports team logos are a prime example. I'm not sure whether thingification stems from mojo, or vice versa. The relationship likely runs both ways, as mojo motivates actors (consumers, trademark owners, judges, etc) to treat brands as things, but legal status also adds to mojo.
This is a really interesting post. I think we need to spend a lot more time with anthropologists, sociologists, and maybe psychology profs to develop a language to describe what is going on in the context of "diluting" uses. Lawyers and marketing folks have tried to describe it in economic terms, but I don't think we'll ever be able to determine the economic effect of these uses (as if that ever had anything to do with IP policy). What we ought to be able to get a handle on is whether things like the Air Pirates poster have a qualitative effect on people's reaction to Mickey Mouse. IP lawyers have an impulse to lock up everything, but I think it's far from settled that Air Pirates affects the meaning of Mickey Mouse.
For one thing, it is in the interest of creators of these countercultural products to maintain the value and the predominant meaning of Mickey Mouse - if Mickey cease to be a cultural icon, who would want the poster? So what we all should be trying to figure out is how Air Pirates does anything to Mickey's mojo, or whether dilution protection is responding to perceived free riding more than any identifiable harm to Mickey.
Posted by: Mark McKenna at September 28, 2005 08:27 PM
Speaking of "stealing" mojo, you should check out the voluminous number of TM registrations in the term!
I think the mojo explanation is fascinating, and I expect this will be a topic for further discussion. However, my most immediate concern is that each of us has different relationships with brands. For example, while I *like* Disney, I don't LOVE Disney. No-mojo for Disney in my book. But for me, SLINKY has mega-mojo--but most people think I'm crazy. So how do we build a theory of TM law that recognizes that many brands have some fanatical fans, many supportive fans and many people who couldn't care less?
Posted by: Eric Goldman at September 28, 2005 08:53 PM