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PseudoVariety (or, Where’s My Tiger Quiet Storm Grape Gatorade?)

Here’s a fascinating visualization of soft drink brands, showing how Coke and Pepsi dominate about 74% of the market via a kaleidoscope of brands. The creator of the visual argues that the industry’s concentration is “obscured from us by the appearance of numerous choices on retailer shelves,” which Steve Hannaford “refers to . . . as ‘pseudovariety,’ or the illusion of diversity, concealing a lack of real choice.” There is a certain “tyranny of the market here,” which obscures the real dominance of a small handful of companies in beverages (and perhaps also illuminates the extraordinary political activism of the American Beverage Association, even in light of the national security threat some of its products pose.)

Jake W. Barnes proposes a novel legal response to the brand proliferation and resulting obfuscation of the “true source” of products:

Trademark law is unjustifiably permissive because it protects more than one mark for each supplier of goods and services. . . . Multiple marks are not necessary to indicate source. . . . This article proposes and justifies a radical restructuring of trademark law limiting trademark protection to one mark per source, a “single signal” rule. It argues that the proper scope of trademark law requires emphasizing source-indicating function of trademarks and liberating the product-describing function. It suggests a program for minimizing the dislocation costs to consumers and suppliers that result from removing trademark protection from many famous marks.

An idea whose time has come? A leading novelist suggests the pseudovariety problem will only get more intense; Gary Shteyngart’s new dystopian fiction features UnitedContinentalDeltAmerican Airlines, LandO’LakesGMFord credit, and AlliedWasteCVSCitigroup retail in a “very near future.” Can DrPepperSnappleGroupDessertToppingFloorWax be next?