Beers, before she stopped giving interviews, explained: “This is a war about a way of life and fundamental beliefs in values we did not expect to ever have to explain and defend — such as freedom and tolerance.” She described her task as having to market the American way of life “for audiences who are, at best, cynical.”

Cynical? If only our task were that easy. Beers and the State Department may believe that the war on terrorism can be won by branding American values as if they were commercial trademarks. But they are bound to be disappointed. They should remember that trademark battles hinge on discerning the conduct of the “reasonably prudent” buyer. Tests of the likelihood of confusion — like tests determining whether advertisements are false and misleading, or whether literature is likely to incite acts of violence — require exploring the thoughts of the rational consumer. This consumer, according to a Third Circuit U.S. Court of Appeals case, is “neither savant nor dolt.” The First Circuit assumes he is “of normal intelligence.” While the courts do not expect genius, “there simply must be some limits to the claimed asininity” of the buying public.

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