Stealth Marketing and Antibranding: The Love that Dare Not Speak its Name

56 Pages Posted: 11 Sep 2010

See all articles by Sonia Katyal

Sonia Katyal

University of California, Berkeley - School of Law


“In the twenty-first century,” one commentator notes, “brands have acquired a place in the world unimaginable in any previous period of history.” Yet inasmuch as brands serve as powerful expressions of consumer identity and desire, they are also an important vessel of corporate identity and property. By inhabiting these two worlds - the world of the consumer, and the world of the corporation - brands have come to play an increasingly vexing role in public consciousness. On one hand, they represent a proprietary vessel, a trade symbol that allows a company to symbolically encapsulate its identity - its goals, its products, and, increasingly, its philosophy. Yet on the other hand, brands are also becoming an expressive index of consumer identity and philosophy. These associations are tightly socially constructed through advertising, but they are also images that are malleable and easily changed.

Aside from the idealized convergence between personal and corporate identity that a brand represents, a brand can be also simultaneously deeply political and deeply commercial, and as part of our cultural consciousness, a brand can often serve as a powerful organizing principle for political action. In just the last few decades, a new movement of activists has sprung up internationally and domestically, engaging in what I call ‘antibranding’ - artistic and political activity to challenge the expansion of the brand into public discourse.

For many years, the brand and the antibrand peacefully coexisted, and most consumers were largely able to identify both by drawing upon context, in both the worlds of real and digital space. However, more recently as consumers have grown more and more overloaded with information, advertisers have been forced to seek out more creative ways to communicate their messages to the public, leading to a blurring of the lines between the brand and the antibrand. Today, the increasing prevalence of guerrilla or stealth marketing has tended to blur the lines between traditional and nontraditional forms of advertising. Since many forms of stealth marketing often takes place within the nontraditional channels that antibranding occupies (public space, websites, and other forms of media and content), it becomes more difficult then for the consumer to distinguish between the brand and the antibrand, destabilizing the division between them.

In this symposium piece devoted to the study of advertising in the law, I focus on the relationship between the brand and the antibrand, and the implications of their dialectic for trademark law generally. Trademark law, I argue, has facilitated a dual trend: while brand sponsorship stretches into noncommercial domains, mimicking the style and substance of user-generated content, it risks overtaking the traditional sphere occupied by the antibrand, destabilizing the division between commercial and noncommercial forms of speech in the process.

Suggested Citation

Katyal, Sonia, Stealth Marketing and Antibranding: The Love that Dare Not Speak its Name. Buffalo Law Review, Vol. 58, p. 795, 2010, Fordham Law Legal Studies Research Paper No. 1675005, Available at SSRN:

Sonia Katyal (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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