100 Pages Posted: 6 Oct 2009 Last revised: 11 Sep 2010
Date Written: October 1, 2009
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.
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