Download This PaperRethinking Trademark Law's 'Consumer' Label
18 Pages Posted: 23 Aug 2019 Last revised: 31 Mar 2020
Date Written: March 30, 2020
Abstract
We are labeled "consumers." Our product-related activities are referred to as "consumption." We are told that we "live in a 'consumer society' with a consumer culture."" So it's perhaps unsurprising that the term "consumer" is used constantly, reflexively, and unconsciously, to refer to trademark law's subject - us, the buying public.
The 'consumer' is trademark law's fictional construct - like the PHOSITA in patent law, the author in copyright law, or the reasonable person in tort law. The Supreme Court recently wrote in Iancu v. Brunetti that trademark law has "a specialized mission: to help consumers identify goods and services they wish to purchase, as well as those they want to avoid." And it's been said that "trademarks are a property purely of consumers' minds." Indeed, the 'consumer, we are led to believe, is the measure of all things in trademark law."
This essay discusses the negative connotation of the consumer label and the implicit linguistic bias inherent in consumer rhetoric. It then explores a potential connection between the consumer label and trademark law's defining of the public in a manner that is patronizing, biased, insulting, and indulgent of likelihood of consumer confusion claims.
This essay is based on the remarks I made at the Medicine, Music, & Mascots: Furthering Social Justice in the Age of Intellectual Property conference at Gonzaga University School of Law in September 2019. This subject matter will be discussed more fully in my forthcoming article, "Is the Word 'Consumer' Biasing Trademark Law?," 8 Texas A&M L. Rev. __ (2021).
Keywords: intellectual property, implicit bias, marketing, psychology, trademark law, consumer, advertising, linguistic bias, consumer protection, consumer confusion, rhetoric
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