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The McCarthy Institute

Collaborating to solve IP and branding challenges

The McCarthy Institute sits at the intersection of trademark law, marketing, technology, and consumer behavior. A joint-program with Arizona State University’s Sandra Day O’Connor College of Law, The McCarthy Institute conducts regular symposia, workshops, networking groups, and pursues original IP and branding research and scholarship.

Connecting the world’s best IP professionals and brands

The McCarthy Institute is named after J. Thomas McCarthy, its Founding Director and world-renowned author of the multi-volume treatise, McCarthy on Trademarks and Unfair Competition Law, which has been cited in over 7,000 judicial opinions. Over the past decade, The McCarthy Institute has grown into a community of IP and branding professionals focused on the latest developments in trademark law, the technologies powering brand development, and the consumer behaviors that make up brand perception. The McCarthy Institute strives to develop a better understanding of the way that culturally transformative business trends shape the law and vice-versa.

The McCarthy Institute pursues original research, publishes peer-reviewed scholarship, sponsors industry events, and hosts an annual symposium that draws hundreds of the world’s top legal and branding professionals.

In 2021, The McCarthy Institute joined Arizona State University’s Sandra Day O’Connor College of Law in Phoenix, Arizona.


Recent publication

Influencer Marketing on Instagram and TikTok: Entertainment or Deception?
Date written: April 1, 2024

View supporting material.

David A. Hyman, Georgetown University Law Center
David J. Franklyn, Golden Gate University - School of Law
Leo Yang, Arizona State University (ASU) - Sandra Day O'Connor College of Law
Mohammad Rahmati, Sharif University of Technology

Influencers routinely promote goods and services to their followers on Instagram and TikTok. Federal law requires influencers to “clearly and conspicuously” label content for which they are paid, but the social media environment deliberately blurs the lines between paid and unpaid content. We study whether Instagram and TikTok users can identify paid influencer marketing content from six different influencers. On average, 29% of respondents believed paid marketing content from six different influencers were not paid ads and 8% were unsure, with significant variation by influencer. The labeling used by influencers to identify influencer marketing content is not consistent – let alone clear and conspicuous. There is also considerable heterogeneity in how respondents interpreted the labels that are being used by influencers. We also find evidence of two-way blurring; on average, 29% of respondents thought unpaid influencer content on Instagram and TikTok were paid ads, and 9% were unsure, with significant variation by influencer. Influencer marketing on Instagram and TikTok involves a significant risk of deception that is not adequately addressed by current policies.

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Student opportunities

The McCarthy Institute Research Fellowship

Fostering original IP and branding scholarship

The McCarthy Institute sponsors student and faculty research projects from ideation through publication in peer-reviewed law journals. McCarthy Research Fellows pursue innovative and important solutions to pressing interdisciplinary problems at the intersection of trademarks, branding, and consumer behavior. In addition to project funding, McCarthy Research Fellows receive personal guidance from the faculty, advisors, and directors in addition to unique networking opportunities with industry leading professionals.

Connect with us

Current ASU Law and MBA students interested in joining The McCarthy Institute should contact Prof. David Franklyn directly with details for their proposed research.

Group of student fellows and professors from The McCarthy Institute

The McCarthy Institute Research

Award-winning publications cited by lawyers, judges, and regulators

The McCarthy Institute scholarship is published in leading peer-reviewed law journals and is widely recognized throughout the legal industry as respected commentary on complex issues. In 2016, the US Patent and Trademark Office Society recognized one of our publications with the prestigious Dr. Joseph Rossman Memorial Award for the greatest contribution to the field of Patents, Trademarks and Copyrights.

Going Native: Can Consumers Recognize Native Advertising? Does It Matter?
19 Yale J.L. & Tech. 77 (2017).

The Problem of Mop Heads in the Era of Apps: Toward More Rigorous Standards of Value Apportionment in Contemporary Patent Law
98 J. Pat. & Trademark Off. Soc'y 182 (2016) (Winner of the 2016 PTO Society Rossman Award for the greatest contribution to the field of patents, trademarks and copyrights)

Search Bias and the Limits of Antitrust: An Empirical Perspective on Remedies
55 Jurimetrics 339 (2015).

Owning Oneself In a World of Others: Towards a Paid-For First Amendment
49 Wake Forest L. Rev. 977 (2014).

Trademark Surveys: An Undulating Path
92 Tex. L. Rev. 2029 (2014).

Trademarks as Search-Engine Keywords: Who, What, When
92 Tex. L. Rev. 2117 (2014).

Trademarks as Search Engine Keywords: Much Ado About Something?
26 Harvard J. L. & Tech. 481 (2013).

The European Court of Justice Rules on Keyword Ads and Trademark Rights
14 Intell. Prop. L. Bull. 89 (2010).

The New Federal Anti-Dilution Act: Reinstating the Myth of Likely Dilutive Harm as a Mask Anti-Free-Rider Liability
11 Intell. Prop. L. Bull. 199 (2007).

Debunking Dilution Doctrine: Toward a Coherent Theory of the Anti-Free-Rider Principle in American Trademark Law
56 Hastings L.J. 117 (2004).

Owning Words in Cyberspace: The Accidental Trademark Regime
2001 Wis. L. Rev. 1251 (2001).

The Apparent Manufacturer Doctrine, Trademark Licensors and the Third Restatement of Torts
49 Case W. Res. L. Rev. 671 (1999).

Toward a Coherent Theory of Strict Tort Liability for Trademark Licensors
72 S. Cal. L. Rev. 1 (1998).

The McCarthy Institute events

The 2024 Copyright Symposium (March 8, 2024)

focusing on AUTHORSHIP, with keynote by Andrew Foglia, Deputy Director of Policy and International Affairs, U.S. Copyright Office.

Through the Copyright Symposium, The McCarthy Institute at ASU Law and the UCLA Institute for Technology, Law and Policy brought together the foremost copyright scholars, practitioners, and industry leaders to engage with cutting-edge issues within copyright law.

Convening the foremost copyright scholars, practitioners, and industry leaders on emerging and pressing issues within copyright law — this year’s symposium focuses on AUTHORSHIP. Panelists will address authorship and AI, community authors and cultural property, and more. 

Learn more


IP Con (September 29, 2023)

The proliferation of AI is disrupting the foundation of IP law by challenging long-held conceptions of what it means to be a creator, inventor, or producer of intellectual property. This latest installment of IP-Con will bring together government, academia, industry, and legal practice experts to explore this new intersection of AI, IP, and regulatory initiatives.

Learn more


Webinar series

The McCarthy Institute hosts one-hour webinars on YouTube covering a variety of topics including case law updates, biotech patents, international trademark law, and branding.




Prof. J. Thomas McCarthy

J. Thomas McCarthy
Founding Director of The McCarthy Institute

David Franklyn

David Franklyn
Executive Director of McCarthy Institute, Professor of Law at Arizona State University

Russell Pangborn

Russell Pangborn
Partner, Seed IP Law Group LLP

Angela Lee

Angela Lee
Mechthild Esser Nemmers Professor of Marketing, Northwestern University

Elena Grimme

Elena Grimme
Associate General Counsel, Microsoft

David Bernstein

David Bernstein
Partner, Debevoise & Plimpton

Laura Chapman

Laura Chapman
Partner, Sheppard Mullin

Gordon Humphreys

Gordon Humphreys
Chairperson of the Fifth Board of Appeal, EUIPO

Shari Diamond

Shari Diamond
Howard J. Trienens Professor of Law, Professor of Psychology, Northwestern University

David Hyman

David Hyman
Professor of Law, Georgetown Law

Isabella Cunningham

Isabella Cunningham
Professor of Marketing, The University of Texas at Austin




Analysis Group
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Bereskin & Parr
Covington & Burling
Davis Wright
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Drinker Biddle
Fish & Richardson
Hogan Lovells
International Trademark Association
Jackson Walker
Lewis Roca
Morrison Foerster
Perkins Coie
Seed LLP
Shapiro Cohen
Sheppard Mullin
State Bar of Arizona
Thomson West
Warner Bros Media