Trademarks, Identity and Justice
45 Pages Posted: 7 Sep 2011
Date Written: Summer 2011
Intellectual property scholars have written extensively against expanding the scope of intellectual property laws, using social justice and distributive justice principles to support their arguments. A typical argument attacks broad adoption and enforcement of copyright laws that prevent access to information and therefore knowledge, or broad patent protection that reduces access to medicines and other important technologies. In recent years, a few scholars have begun to suggest that certain areas of intellectual property law - primarily copyright - may play a positive role in social justice. These arguments are founded on views of social and distributive justice that consider personal empowerment and freedom to pursue opportunity as viable goals. Very little has been written, however, on the role of trademark law and publicity rights (what I call “identity” law) on development and social justice. Several factors support examining these issues now. Minorities in the U.S. are far less likely than non-minorities to seek trademark protection from the US Patent and Trademark Office, placing into question the role of attorneys in assisting underrepresented populations with intellectual property acquisition. Indeed, lawyers are beginning to offer pro bono services to intellectual property clients, and intellectual property clinics are emerging at law schools nationwide, indicating that the American legal community considers offering low-cost or free counseling in intellectual property law, including trademark and identity law, to be justified by professional responsibility. Meanwhile, social media has made overnight celebrity and personal branding a real possibility for many individuals, regardless of their socioeconomic status, further highlighting the need for representation of individuals in the field of trademark and identity law. This article explores the role of trademark and identity law in promoting self-sufficiency and self-reliance among under-served populations, and examines both areas of law through the lens of social justice and personal empowerment. It concludes that broad societal concerns about over-protection of intellectual property rights have their place, but there is as well a social justice foundation for assisting individuals with acquiring and protecting trademark and identity rights.
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