The power of marketing is inextricably intertwined with copyright and trademark. Go to your local liquor store and watch people grab a 32-ounce Rock Star from the display case and plonk down $4.99 for what is essentially a bunch of fizzy water, sugar, and a ground up No-Doz. Do that every day for a year and watch $1,500 leave your bank account — a vacation to Hawaii for a family of four — all for the satisfaction of getting a trendy caffeine buzz that could have been accomplished equally well by throwing a couple tablespoons of Folgers Instant into a cup of hot water and knocking it back as you head out the door.
The potency of this phenomenon is due to savvy ad men distorting reality so that you think you need one of these drinks to get you through the morning, when in actual fact you need nothing of the sort. Sleep in for ten more minutes, do some pushups, situps, and squats before you jump into the shower, and after a couple of days you’ll find you don’t need your culturally induced pick-me-up any more than you need to watch TV four hours every night (and don’t say “Oh, but my favorite show is on!” unless you care to out yourself as a deluded tool that hates reading). When I was a kid, before discovering the joys of caffeine, I remember getting up at 4:30 to deliver the paper and mimicking the James Bond technique for early-morning alertness: jump in the shower, turn it on scalding hot, then turn it on full-blast-below-Kelvin-cold, then back to blistering hot, then jump out of the shower with all your neurons firing in double cadence. I had no idea that Bond required this wake-up technique due to a predilection for over-indulging in his favorite shaken-not-stirred beverage on a nightly basis, and needed the hot steam to hack through the 3-pack-a-day habit keen readers of the Fleming oeuvre will remember before Britain banned smoking in every pub, parlor, gambling hall, and den of iniquity.
In today’s society we are inundated with images of pre-teens in pajamas and Uggs schlumping around Starbucks drinking venti vanilla lattes and frappuccinos, lounging poolside with cans of Coke and Pepsi, jacking themselves up with super-sized beverages at Mickey D’s, and constantly getting hyped on Red Bull and its various analogues. It’s so prevalent we can almost delude ourselves into thinking it’s normal. It’s so prevalent we don’t stop to think how absurd it is for kids — who have more natural energy than virtually anything else on the face of the planet — to need a daily dose of three or four (or more) cups of coffee. We as a society complain that we have too many hyperactive kids (to go along with the millions of attention deficit babies trained by television to only be able to pay attention for the 7 minutes between commercials), but we create their hyperactivity by dosing them with sugar and caffeine and acting as if it’s the most natural thing in the world for an 8-year old to drink a soda. I have to laugh when I see parents yelling at their kids for being spazzes after they just fed them a cocktail specifically designed for the purpose of turning them into whirling dervishes. Little Billy can’t calm down because his heart is going BOOM-budda-BOOM 220 times a minute after that Jolt Cola hits his bloodstream.
Please don’t mistake me for a caffeine prude. Those of you who know me know that I’m a caffeine junkie prone to ingesting eight cortados a day. But that’s an enlightened choice, not a marketing decision. What has happened is that the marketeers have decided to brand drinks and pitch them to the youngest members of our label-obsessed society. Sounds a bit insidious, I agree, but pitching a unique brand of sugar and caffeine to an 8-year old is no different than selling Jameson’s to the discriminating 40-year-old whiskey drinker. Easier, in fact, because if you hook them when they’re young you’re likely to have a lifelong fan on your hand. Where do you think your own discriminating taste buds made you a fan of Coke, and not Pepsi, if not in your benighted youth?
The “energy drink” pitch is just the same tired song and dance recycled by the modern day snake oil salesman, telling you you’ll be smarter, better, quicker, faster, brighter, wittier, more interesting, nimble and perhaps even better-looking if you ingest their particular brand of fizzy water. “Oh, but it has Taurine and Ginseng in it!” you exclaim. Yes, that’s true, at levels that are so negligible it’s an embarrassment that the FDA lets them actually print that on the cans. And if you can tell me why you think that Taurine and Ginseng will do absolutely anything beneficial for you at all, I’d love to hear your story. All you are buying is marketing. All the companies are selling is five cents of pap stuffed inside a cool-looking can, which they spend millions and millions to make you think you need.
For the sake of clarity, what do you think would happen if you asked your doctor if carbonated caffeine drinks should be a staple of your diet? Do you think he’d applaud your decision? Or would he calmly inform you that — as you already know in your gut — you are delusional and throwing your money away on things you don’t need. It’s like the mantra from Fight Club — you work at a job you hate to make money to buy things you don’t need but that the marketing geniuses have convinced you you can’t live without. The cruel parody of capitalism is that we freely do this to ourselves, without pausing to consider why it is so, and call it by noble-sounding labels such as “the will of the market” rather than the duplicitous con it really is.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.