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Advertising and the Public Interest: Legal Protection of Trade Symbols, 57 Yale L.J. 1165 (1948)


The law of trade symbols is of modern development, largely judge-made and only partly codified. Its impetus comes from the demands of modem advertising, a black art whose practitioners are part of the larger army which employs threats, cajolery, emotions, personality, persistence and facts in what is termed aggressive selling. Much aggressive selling involves direct personal relationships; advertising depends on the remote manipulation of symbols, most importantly of symbols directed at a mass audience through mass media, or imprinted on mass-produced goods. The essence of these symbols is distilled in the devices variously called trade-marks, trade names, brand names, or trade symbols. To the courts come frequent claims for protection, made by those who say they have fashioned a valuable symbol, and that no one else should use it. Very recently, for example, the vendors of Sun-Kist oranges lost a court battle to prevent an Illinois baker from selling Sun-Kist bread. The highest court, in its most recent encounter with a like case, upheld the power of a manufacturer of rubber footwear to prevent the use of a red circle mark by a seller of rubber heels, which the plaintiff did not manufacture.

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