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You hope to get the latest scoop on the Obama campaign, so you quickly pull up Google and search for “Barack Obama.”  Surprisingly, Romney ads pop up.  Are you confused?  Most likely, not so much.  I would hope that any moderately informed citizen could effortlessly differentiate between Barack Obama and Mitt Romney.  Nevertheless, critics have argued that this type of “brand hijacking” can breed confusion for voters hoping to attain information about one candidate and being shown ads for the other.

This year, the candidates started purchasing ads that would appear when people searched for their competitor, a method that companies have been using for years.  Advertisers usually pay for their message to appear as an ad along with the results of a search for a competing brand.  As long as this type of advertising does not cause consumer confusion, it shouldn’t be an issue.  In this case, however, it is no longer a company trying to one-up its competitor; much more is expected from the presidential candidates.  Apparently, consumers have viewed this tactic as a nasty way of doing business and held it against the candidates.

Despite its criticism, this approach was adopted to help the candidates raise awareness among web users.  According to Rebecca Tushnet, a law professor at Georgetown University Law Center, “If people aren’t confused, the fact that they might think differently about Obama after seeing Romney’s ads — it isn’t harm, it’s just the market working.”  As previously mentioned, most users would not be confused as to what the ads are promoting, so this approach would likely not violate trademark law and not be harmful to the “consumers.”

Providing users with options should not condemned.  In fact, as a public policy matter, it is critical for users  to be provided with a wide array of information before making important decisions that could affect us all, such as who will become the next president of the United States.  After all, this decision differs greatly from consumers deciding on what their next car will be.  Thus, while consumers might be fed up with Toyota ads popping up when they merely wanted information about their new Honda, perhaps they shouldn’t immediately write-off useful information about their favorite candidate’s opponent.

–Marina Visan


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3 Responses to Presidential Brand Hijacking: Were You Confused?

  1. Will P. says:

    Avery, of course it’s an obvious ploy to garner attention, but I would argue that that’s just how our political system works–it’s an adversarial process. There’s something to be said for the idea that ploys to garner attention coming from either side may balance each other out and lead the voter to an educated decision, and our judicial system rests on the same reasoning.

  2. Avery VanPelt says:

    Really interesting topic! I think that given the way we consume the news today, it’s entirely possible to receive only the news feeds that reinforce our preconceived notions — particularly as regarding politics. As a policy matter, I agree that it’s not such a bad idea. I find myself in the same boat with those who hold this against the candidates, though. Somehow I don’t think the public interest was what motivated any of the candidates who engaged in these tactics. Confusion concerns aside (and I agree there isn’t much risk of confusion here), while I completely agree that voters should be exposed to information about the other candidate before voting, this still seems like a rather disingenuous–and maybe a little too obvious–ploy to garner attention.

  3. Michael Dearington says:

    Great post, Marina! Under the Lanham Act, the Second and Ninth Circuits seem to be grappling with “keyword sales” and especially the threshold issue of whether this type of brand-jacking constitutes a “use” under the Act. I normally consider the issues with respect to consumer protection and property rights, but this new political-autonomy aspect is really fascinating.