Stealth Marketing and Antibranding: The Love that Dare Not Speak Its Name

Abstract

A difficult set of legal issues stem from the crossover between stealth marketing and user generated content in both real and digital space. Today, branding opportunities can be cloaked within ordinary noncommercial expression, as corporate sponsorship extends further and further toward resembling user generated content, making it difficult to discern when content is sponsored and when it is not. Since many forms of stealth marketing often takes place within the nontraditional channels that antibranding occupies (public space, websites, and other forms of media and content), it becomes more difficult then for the consumer to distinguish between the brand and the antibrand, destabilizing the division between them. This shift carries substantial legal implications for trademark owners. When advertising is no longer limited to its traditional channels, the public sphere becomes littered with examples of both branding and antibranding. As a result, it becomes all the more necessary for trademark law to intervene, leading brand managers to act more readily to protect the goodwill behind their marks through an increasing reliance on trademark surveillance and ceaseand- desist strategies. In this symposium piece devoted to the study of advertising in the law, I focus on the relationship between the brand and the antibrand, and the implications of their dialectic for trademark law generally. Trademark law, I argue, has facilitated a dual trend: while brand sponsorship stretches into noncommercial domains, mimicking the style and substance of user-generated content, it risks overtaking the traditional sphere and functions occupied by the antibrand. In Parts I and 11, I discuss the rise of both the brand and the antibrand in public spaces. In Part 111, I discuss how advertising, increasingly, has begun to draw upon the traditional channels occupied by antibranding strategies, and in Part IV, I discuss some potential legal implications from this expansion.

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