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- Title
CONJURING THE FLAG: THE PROBLEM OF IMPLIED GOVERNMENT ENDORSEMENTS.
- Authors
MATTIOLI, MICHAEL
- Abstract
This Article exposes a harmful form of advertising that exploits government actions like patent issuances, FDA authorizations, and trademark registrations. By calling upon the symbolic power of such regulatory approvals--i.e., "conjuring the flag"--marketers deceive consumers, distort competition, and undermine administrative agencies. Using machine-learning techniques to analyze hundreds of ads across multiple media formats, this Article offers the first comprehensive analysis of this pervasive practice. The study reveals that it is especially prevalent in industry settings where consumers are likely to seek reassurance that a product is safe and effective. Specifically, the examples examined show that patents are mentioned frequently in ads for supplements, cleansers, cosmetics, insect sprays, and hair products. It also shows that the USPTO contributes to the problem by registering trademarks that incorporate regulatory references. Consumer protection laws and regulations have failed to curb this practice, as advertisers have found subtle and legally permissible ways to manipulate consumer perception. This Article proposes two legal reforms to empower the FTC to address this issue more effectively, and suggests measures to better facilitate class action suits. This Article thus sheds light on a crucial intersection of intellectual property, consumer protection, and administrative law.
- Subjects
GOVERNMENT advertising; PATENTS; TRADEMARKS; INTELLECTUAL property; MACHINE learning; UNITED States. Patent &; Trademark Office; UNITED States. Federal Trade Commission
- Publication
Maryland Law Review, 2024, Vol 83, Issue 3, p707
- ISSN
0025-4282
- Publication type
Article