Trademark Law and Racial Subordination: From Marketing of Stereotypes to Norms of Authorship

Abstract

Trademark protection, as with intellectual property (IP) protection across the board, has expanded in recent years. Some contend that IP expansion has occurred primarily at the behest and for the benefit of large corporate conglomerates. Professor Greene's previous work has contended that trademark expansion has the potential to negatively impact cultural production and free speech, particularly in the expressive context of entertainment products such as music, film and television. Trademark critics have grown vocal in recent years about the misuse of trademark law. Similarly, numerous academic commentators have detailed the deleterious effects of a too-robust trademark law regime.

There is also increasing recognition, among academics at least, that trademark law and IP law generally impact diverse constituencies, including creators, consumers, and corporations. However, outside of the topic of racially offensive trademark registrations, IP scholars have devoted relatively scant analysis to the intersection of race and trademark law. Professor Greene's scholarship, however, has closely examined African-American cultural production and its relationship to intellectual property, particularly copyright law.

In this article, Professor Greene explores trademark law in conjunction with racial dynamics within American culture. The article's thesis consists of three points. First, although trademark law, like copyright, is a formally "race-neutral" legal regime, it has both impacted and been impacted by the racial dynamics underlying American society. In the United States, our public discourse has historically focused on racial classifications and stereotypes.

Second, far from being at the fringes of the process of racial subordination, trademarked imagery has been central to the promotion of derogatory racial stereotypes. Negative racial stereotypes have generally declined as norms of racial equality have taken hold in our society. However, despite progress in race relations, the resonance of stereotypes is still profoundly strong in American culture and is reflected in stereotypical trademark uses.

Third, drawing on the work of scholars with "critical" perspectives of the law, this article contends that the treatment of African-American artists, consumers and producers within the IP context can serve as a barometer for how our society serves (or disserves) the least advantaged in society. A corollary of this point is that where a group's civil rights are weak, so is the degree of protection afforded by the IP system. IP protection or lack thereof is related to racial subordination and can serve as a leading indicator of racial progress.

Keywords: trademark, Lanham Act, intellectual property, racial subordination, racial stereotypes, moral rights, authorship, integrity rights

JEL Classification: K10