Social animals respond to symbolic actions, including attention and reputation. Duane Jones, the old master of advertising, slammed this point repeatedly. You need a good product FIRST. If you want to succeed, you also need the right kind of attention and reputation. An adman can’t help a bad product.
Two current lawsuits deal with this distinction in different ways.
1. Activist lawyers (ambulance chasers) are suing Pepsico for claiming that Gatorade “hydrates better than water.” It’s a well-aimed settlement weapon. You can’t prove or disprove the claim firmly.
Two years ago I was having trouble with dehydration. I started using a powdered off-brand like Gatorade. Water plus powder was definitely more satisfying, had a better reputation. Eventually I decided that it wasn’t the important variable. When I drank enough water without the powder, I also felt better physically but didn’t gain more confidence.
Placebo works, even when you’re pretty sure the action is placebo. We need to receive a healing token. The action of making and drinking the electrolyte gave me confidence. Now we’re on the road to recovery.
2. A company makes a dog squeeze toy shaped like a liquor bottle, with a label that closely resembles Jack Daniels. The brand is “Bad Spaniels Old #2”. Cute. Squeeze toys satisfy a dog’s need for tokens. The label catches the human’s attention.
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As a juror, how would I rule in each case? I’d favor Gatorade in the first. It’s a good product and the placebo makes it better. Combining physical and mental effects, it does hydrate better than water. I’d favor Jack in the second. Obvious trademark infringement, and the product wasn’t improved by this particular way of gathering the buyer’s attention. The maker could have done the same without copying a trademark.
Polistra's Mill 