Advertising and Social Identity

The regulation of advertising implicates fundamental questions about control over brand meaning and the role of identity formation in law. Bartholomew examines a legal debate between "semiotic democrats" who argue that commercial speech law should allow consumers and citizens greater control over brand definition versus those who contend trademark law should preserve advertisers' chosen meanings. Trademark doctrine blocks secondary uses that confuse consumers or dilute mark identity, while federal dilution law protects against uses that threaten the public mind's association with the mark holder's source. The article challenges the assumption that advertising's effects on meaning are easily quantifiable or controlled. Evidence on consumer perception is inconsistent, suggesting truth likely lies between extremes: consumers sometimes rework commercial appeals to fit their own liking, but sometimes consume the exact message promulgated by advertisers. Bartholomew argues that identity and self-definition are central to many legal domains from sexual harassment to immigration. Niche marketing directed at gays and lesbians illustrates how targeted advertising can powerfully shape identity formation. The article examines whether legal rules should protect trademark creators' chosen meanings or permit greater democratic control over brand identity and meaning in commercial contexts.

Topics: Intellectual Property · Constitutional Law · First Amendment

Keywords: trademark law · advertising meaning · brand identity · dilution law · fair use doctrine · niche marketing · semiotic democracy · consumer perception