Abstract

http://ssrn.com/abstract=1481460
 


 



Trademark Intersectionality


Sonia Katyal


Fordham University - School of Law

October 1, 2009

UCLA Law Review, Vol. 57, p. 1601, 2010
Fordham Law Legal Studies Research Paper No. 1481460

Abstract:     
Even though most scholars and judges treat intellectual property law as a predominantly content neutral phenomenon, trademark law contains a statutory provision, Section 2(a) that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous,” a provision that has raised intrinsically powerful constitutional concerns. The constitutional tensions surrounding Section 2(a), invariably, affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a certain product or corporation within the marketplace of goods, it largely underestimates the more complex role that trademarks play within the marketplace of ideas. Conversely, by only taking into account a brand’s expressive implications, the provisions governing scandalous, disparaging and immoral matter fail to substantively address the source-identifying functions that these marks often serve.

This Article starts from the premise that the best way to balance the tension between these two perspectives is to focus on the foundational role of the government in regulating the dual norms of both commerce and communication in trademark law. Borrowing from insights from critical race theory and anti-discrimination law, I argue, in this Article, that we need to grapple with the creation of a new kind of intersectionality among cultural symbols - an intersectionality that stems from the interaction of a trademark’s economic, commercial, and cultural identities. This project requires us to reexamine the very nature of the trademark itself. While most scholars classify trademarks as private goods, I argue that they operate much more like other public goods, a point that the laws of trademark often overlook, and which sets the foundation for the constitutional difficulties that pervade trademark analysis. By studying how intersectionality might help to resolve the multifaceted role that trademarks inhabit, we also, in turn, refashion the notion of intersectionality itself so that it takes a fuller account of the role of commodification in affecting the governance of identity within the commercial and political marketplaces of speech.

Number of Pages in PDF File: 100

Accepted Paper Series


Download This Paper

Date posted: October 6, 2009 ; Last revised: September 11, 2010

Suggested Citation

Katyal, Sonia, Trademark Intersectionality (October 1, 2009). UCLA Law Review, Vol. 57, p. 1601, 2010; Fordham Law Legal Studies Research Paper No. 1481460. Available at SSRN: http://ssrn.com/abstract=1481460

Contact Information

Sonia Katyal (Contact Author)
Fordham University - School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
212-636-7424 (Phone)
212-636-6899 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 818
Downloads: 68
Download Rank: 200,414
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.250 seconds