Notre Dame Law School, Chicago
Session 1 – Advertising and Trademark
Discussion Leaders: Bill McGeveran, Mark McKenna, Zahr Said
Mark McKenna: deception comes up in many fields, but people aren’t talking to each other/citing each other across legal fields. So we wanted to put together a group thinking about similar ideas in other areas.
Woody Hartzog: General questions, such as role of hearer’s skepticism.
McKenna: articles often take for granted that there is a thing called deception and then there are legal questions to be worked out. Very few ask: how does deception differ from confusion, from lying, etc. I too have taken for granted that we can ID the thing called deception.
Danielle Citron: convergences—notions of harm—manipulating someone, altering their situation b/c of deceiver’s intent. Corruption as deception? Secrecy? The harms seemed to resonate throughout—undermine person’s autonomy, trust.
Andrea Matwyshyn: “situation-altering utterances” doesn’t presume an understanding of what’s going on either on the part of the speaker or the perceiver.
Greg Klass: I’d put in act or omission. Most general: an act or omission that wrongfully causes a false belief in another. Then we have to figure out duty and causation—what kind of causal relationships matter.
Matwyshyn: you could dodge causality by saying it’s contextually determined.
Klass: when you paint the ceiling to hide water damage in your house, I don’t think that’s a “representation” though it is deceptive.
Zahr Said: thinks that is a representation: an implicit warrant. Way that deception attends to different understandings of harm through frameworks of contracts, torts, and property. Seana Shiffrin’s writings: contracts perspective, not torts. Harms might be the same but remedies differ.
McKenna: doctrinal buckets v. concepts that span buckets—is this the law of deception, or rather privacy and torts and contracts with deception doing different work in each situation? If there’s some coherence to the idea of what deception is, then it’s more transubstantive.
Bill McGeveran: middle ground—a word attached to concepts that play out differently in different buckets, and we learn about each by consulting the others. Not a grand theory but not independent terms of art in each field.
Ann Lipton: communicative acts v. signs that communicate. See umbrellas: you infer that it’s raining, but no one intended to communicate to you that it was raining by raising the umbrella. In the case of painting over the damage, that’s something where you don’t recognize there’s a communication (I’m not sure I’d draw that conclusion—the reason for painting over it is to hide the damage and the effect the damage has on observers, whether or not it’s merely aesthetic). Contractual view of speech: we have an agreement about how to interpret words.
Matwyshyn: In a different culture, umbrellas would mean that it’s really sunny outside/people are promenading.
Danielle Citron: who do we care about? Threats doctrine—is it that we care about the recipients and their reaction, or do we care about the bad intent of the person uttering the statement?
McKenna: regulating deception for the sake of deception, or regulating advertising and deception happens to play in?
Klass: Shiffrin would say deception is a moral issue.
McKenna: but then why would we split it into different areas? Is it policy purposes, or a sense of what’s wrong about deception and no reason for it not to exist in its own coherent form.
Said: Assault is regulated under two different regimes. There was a time when deception was thought of as more of a coherent concept. Advertising scholars like Lilian BeVier had a discussion about deception, probably b/c of FTC’s actions at the time. So do we need something trans-disciplinary or not? Many other things cross substantive areas of law.
Woody Hartzog: similar to discussions in privacy law about what privacy is. Solove’s taxonomy: is it a family of resemblances, as Solove says of privacy?
Amy Gadza: would advertisers themselves agree that deception was the evil that they are supposed to be avoiding?
Matwyshyn: may have different view about appropriateness, such as remotely turning on the mike on your phone when you’re using an app—they think you’re engaging w/them and have consented to use the app, and it’s just another data stream. Other people say: that’s totally awful and illegal (even if it was in the EULA).
McGeveran: lumping TM and advertising together is itself a very interesting and meaningful choice. Even in these two cognate fields, materiality and therefore what counts as deception (the harm that matters) differs. Information costs: it would waste everyone’s time and energy if all info were disclosed; TMs are info about source of goods [and perhaps other things]; Shiffrin presumptively talks about advertising and McKenna talks about TM, but both have concerns about how to efficiently arrange the duties to get the right amount of info disclosed. Also leads to Qs of consumers’ duties to pay attn to the info in advertising. Minimal duties here, and that connects to the efficiency issue: we don’t necessarily want to have high expectations of listeners/the law generally doesn’t.
Aaron Perzanowski: are we training consumers to be ignorant? Closer to getting that right on false advertising side than on trademark.
McKenna: Modern TM law has abandoned deception for confusion; advertising, more concerned about harm, is working out more questions about how much we should expect from consumers. That’s b/c modern TM law is to protect TM owners, with consumers just used as a mechanism.
Klass: like trespass, not requiring harm.
Said: suggests existence of dignitary interest, as w/trespass.
Klass: or a mistake about scope of law!
Said: we’re not all on the same page on harm. Little FTC Acts don’t require harm.
Citron: but they do in practice, according to state AGs. Aggregate understanding of harm.
Said: class actions happen all the time.
Citron: no, they don’t.
Matwyshyn: we haven’t chosen the lowest possible denominator. We’ve eliminated that subjective standard.
McGeveran: true, there’s a range, and of course a range b/t judges applying the doctrine. There’s an understanding baked into McKenna’s statement that there is a difference b/t confusion and deception. One could say, using a mark in a way that creates confusion among consumers is deceptive.
McKenna: it’s no accident that when TM was focusing on passing off it used “deception” all the time. Courts deliberately moved away from that word when they wanted to expand the law. Significant semantic shift, meant to be a broadening.
McGeveran: also takes away judgment of bad intent—it’s merely causing a result.
Klass: on its face, confusion would be a false belief.
McKenna: sometimes it’s just a state of uncertainty (difficulty in understanding) v. false actual belief.
Klass: confusion is less harmful by nature than harm. Confused = don’t know what to do, can’t rely on your confusion; you know you don’t know.
McKenna: classic passing off: I sell you falsely labeled Coca-Cola, to trick you into thinking it’s the familiar beverage. [The horror!] Instead, if you have a picture of a Coca-Cola can in your movie and people wonder/think that Coca-Cola sponsored the movie, that’s confusion. The core isn’t gone from TM.
Lipton: some confusion can cause harm: if you can’t rely on a label, you can have a market for lemons problem.
Said: scienter, reliance, etc.—things that are usually very hard for consumers to prove in common law fraud, also including intent and materiality. On the other side of the spectrum: ambiguity. Confusion?
McKenna: as compared to modern TM law, advertising law does concern itself w/harm. P must show some harm to itself. Courts just assume the TM owner can sue, except in some remedies contexts. Fanciful theories of harm, and courts just say, yeah, it’s your TM.
Said: sponsorship is a big red herring, not the real confusion issue.
McKenna: what’s the harm of people thinking that two products are produced by the same entity? Very little evidence that one will be punished for low quality of other. TM law doesn’t care; advertising law does.
McGeveran: there’s a difference b/t counterfeiting and using a similar shape/name—not passing off, but free riding on general confusion a consumer will feel about being drawn to my product—TM has found that wrongful even though that wouldn’t qualify for a rigorous definition of deception. Person thinks it looks familiar, but doesn’t necessarily have a crisp mistaken belief.
Citron: so the harm there is a kind of dignitary harm to the TM owner?
Said: that may be how we understand dilution; brands get to assert certain things.
Lipton: repeated distinction in law b/t false and misleading—securities has that too.
Perzanowski: misleading is about where you direct someone’s attention. Water bottle (or other) copying is about capturing someone’s attention. Maybe sometimes that causes harm. Disclosures on TV ads that coordinate w/eyecatching events in video—you’ve captured and focused attention in a way that might lead them to a false conclusion about a product. Can also be done by limited ability to understand statistics.
McKenna: manipulating—what does that mean? All our certainty goes away—what is truth, what is falsity?
Lipton: the issue w/ the similar water bottle shape & name is that maybe it’s confusing, but maybe it’s just indicating that the water is in competition w/the market leader. If you like X, you will like Y.
Said: people don’t have the same starting points on how much influence is ok, and on what counts as influence—malls are designed in particular ways to encourage shopping/spending. Influence and deception are not the same thing.
Hartzog: are we really asking about what false beliefs count?
RT: That’s why I don’t agree that misleading is about attention; it’s about increasing the likelihood that you will act in a way that you wouldn’t want to act if you knew the true state of affairs.
Klass: you can have undue influence w/o a misrepresentation. It’s important, but outside the law of deception.
Matwyshyn: in contracts, you’re out of the box if you’re a minor. You can’t make an agreement. Is that saying that we assume you’re going to be deceived?
Lipton: it’s not just about deception: judgment about making trades, even if you completely understand them. [it’s about understanding one’s own best interests, which does connect up to deception: the theory is that if you truly understood what you were giving away you would not give it away.]
Jessica Silbey: how do we define manipulation v. influence? Purpose to induce reliance, and does induce reliance?
McGeveran: scienter to trick the person, or scienter to influence the person—might differ.
McKenna: all advertising is purposeful attempts to influence behavior; most advertising (by hypothesis) isn’t unlawfully manipulative, so the question is when the line should be crossed.
Silbey: what does the normative moral policing is falseness/misrepresentation. Misrepresentation is defined through falseness and materiality.
Said: can be an omission, though. Fraudulent concealment, failure to disclose.
Silbey: so if we fit manipulative advertising into the tort of deceit, how would we do it? Could we do that?
Klass: manipulation only sometimes involves misrepresentation.
Said: need a framework more based on empirical evidence about consumer behavior, or folk psychology, as suggested by Greg Klass.
Amy Gadja: PR firms now post online with positive rules.
Said: FTC does have disclosure rules about this.
McGeveran: FTC says the company has an affirmative obligation to tell the reviewer to disclose the free sample. Says that it’s deceptive not to do that.
McKenna: what are the background things that shape our expectations and are by default ok.
Silbey: differences between contexts—manipulativeness depends on the market sector. [What is putting cereal on a low shelf for kids to look at the mascots?]
McKenna: have generally decided to draw the line at deception, not persuasion, when it comes to advertising. TM has gone much further, and so if we can give more concrete meaning to deception, that would be a sensible line but it should be noted that’s not the line in all areas and the question here is why.
Lipton: manipulations are not necessarily deceptive but can still cause me harm—I see it, but now I have to spend mental attention figuring out what I should do in response. E.g., companies that change women’s clothing sizes to make us feel better (or worse).
Klass: Shiffrin maps law onto morality in a lot of her work; annoying things don’t necessarily deserve legal regulation.
Lipton: Reads Shiffrin as saying that consumers shouldn’t have the burden of figuring that out.
McGeveran: But McKenna makes the point that this solicitude for consumers doesn’t work so well in TM.