The Indians Who Were Not Heard and the Band That Must Not Be Named: Racial Formation and Social Justice in Intellectual Property Law

Abstract

The promotion of national commerce through federal trademark law is closely aligned with the promotion of “Progress” through the federal copyright and patent statutes. All forms of intellectual property share larger goals of overall human flourishing, and not simply private economic benefit. In Matal v. Tam, the Supreme Court’s majority recognized that the social and political spheres overlap with the economic in the trademark context. Yet in this and its subsequent Iancu v. Brunetti opinion, the Court ignored the value of maintaining a competitive marketplace of ideas—a market space in which speech harms to political and social minorities are mitigated. These opinions also failed to analyze fully how trademarks are implicated in communicative functions within the national (and indeed international) public sphere through the pervasive advertising, branding, and marketing of widespread cultural symbols. Instead, the Court engaged in a simplistic model of speech, signaling its commitment to a larger deregulatory agenda. Against the implications of these recent decisions, this chapter examines Congressional power to address commercial speech harms and shows how the specific speech issues formerly (and perhaps still to be) regulated by the federal trademark statute necessarily impact federal civil rights legislation that addresses racial and other forms of market discrimination.

Keywords: intellectual property, federal trademark law, Lanham Act, commerce clause, anti-discrimination, First Amendment, race