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The Belated Awakening of the Public Sphere to Racist Branding and Racist Stereotypes in Trademarks

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The Belated Awakening of the Public Sphere to Racist Branding and Racist Stereotypes in Trademarks 545 THE BELATED AWAKENING OF THE PUBLIC SPHERE TO RACIST BRANDING AND RACIST STEREOTYPES IN TRADEMARKS FADY. J.G. AOUN* *Readers are advised that this Article contains highly offensive, demeaning, and derogatory representations of Indigenous Australians, Native Americans, Black and ethnic minorities. While these may cause serious offense, they have been included here to provide a more accurate account of the racist trademarks and racist branding circulating in historical and contemporary liberal democratic societies.* ABSTRACT The transformative Black Lives Matter social justice movement has shone a harsh light on endemic structural racism in Western civil societies, especially as it relates to police brutality and hegemonic perceptions of oppressed minorities. A small, but important consequence of this powerful movement is the long overdue mobilization of the contemporary public sphere against longstanding racist branding and racist stereotypes in trademarks. This encouraging outcome — exemplified by the archetypal *Senior Lecturer, The University of Sydney Law School. My sincere gratitude must go to the participants at the Australian and New Zealand IP Academics’ Mini-Conference, Melbourne Law School, 3 & 4 September 2020, the Race & IP Symposium, November 6, 2020, University of New Hampshire Franklin Pierce School of Law, and the 2nd Biennial Conference on Race + IP, April 5 & 6, 2019 at NYU Law School, for their helpful comments and questions. Special thanks must go to Graeme Austin, Kathy Bowrey, Peter Gerangelos, Mark Davison, Michael Handler, and Kimberlee Weatherall for their excellent comments and provocative suggestions on earlier drafts and/or my doctoral dissertation, a portion of which appears in this article. I also acknowledge the excellent editorial assistance of James Tanna, Ryan Rieker and Meredith Foor. All errors remain mine. Volume 61 – Number 3 546 IDEA – The Law Review of the Franklin Pierce Center for Intellectual Property intergenerational Native American struggle against the Washington Football team’s suite of marks and similar battles across the Atlantic and in the Antipodes — is due largely to the sustained efforts of diverse minority groups drawing to the attention of the broader public the societal problem of certain racist trademarks. Xenophobic commercial signs operate as odious communicative vectors resonating far beyond their traditional roles in the market economy as mere signifiers of merchant goods or services, or as species of private property. This article delves into historical trademark registers with a view to setting out various harmful racist tropes circulating as registered trademarks, branding, and advertising in the transatlantic and transpacific public sphere and charts both their stubborn resilience and the almost autochthonous resistance to such marks by marginalized (i.e. counterpublic) groups in these jurisdictions. Building on relevant trademark jurisprudence and normative models of deliberative democracy, it then makes the case that challenging racist commercial insignia is in the democratic public interest. It is worth noting here that though federal trademark law in the United States, the United Kingdom, and Australia emerged from similar foundations, those countries’ paths regarding the registrability of racist trademarks have recently diverged. The post-Matal v. Tam epoch, for instance, forecloses the contributions of U.S. trademark law in this space and once more speaks to the law’s general valorization of free speech and proprietary interests. Yet in the United Kingdom and Australia, both common law liberal democracies without constitutionally entrenched rights to free speech, trademark law still offers emancipatory potential for those rallying against racist commercial symbols. Nevertheless, in all the jurisdictions identified above, multiple and disparate avenues for pursuing this public interest remain. These counterpublic energies and 61 IDEA 545 (2021) The Belated Awakening of the Public Sphere to Racist Branding and Racist Stereotypes in Trademarks 547 their contribution to the promotion of truly egalitarian and vibrant democratic civil societies are explored below. “Only events which are perceived as dramatic or social movements can trigger drastic shifts in opinions.” 1 “We’d already won this fight in terms of gaining a societal understanding of the issues. There were thousands of people involved, spanning generations. The Washington team could have joined with the people of good conscience a long time ago.”2 “[T]he public interest may sometimes support decisions about the exploitation of trade signs which are not in the particular interests of either consumers or traders as such but which, for example, promote a free and accessible communicative sphere.”3 Abstract ........................................................................... 545 I. Introduction ............................................................. 548 II. Historical Trademark Registrations and Resistance In the Transpacific and Transatlantic Public Sphere ........... 566 A. Racist Trademark Registrations in the Anglo- American and Anglo-Australian Public Sphere .......... 569 1 JÜRGEN HABERMAS, EUROPE: THE FALTERING PROJECT 164 (Ciaran Cronin trans., 2009) [hereinafter “HABERMAS, Europe”]. 2 Suzan Harjo quoted in Courtland Milloy, Suzan Harjo fought for decades to remove the Redskins name. She’ll wait to celebrate, WASH. POST (July 15, 2020, 7:20 PM), https://www.washingtonpost.com/local/ suzan-shown-harjo-redskins-name-fight/2020/07/14/6f382d16-c5f4- 11ea-b037-f9711f89ee46_story.html [https://perma.cc/Y596-UT59]. 3 Patricia Loughlan, The Campomar Model of Competing Interests in Australian Trade Mark Law, 27 EUR. INTELL. PROP. REV. 289, 292 (2005) [hereinafter “Loughlan, Campomar”]. Volume 61 – Number 3 548 IDEA – The Law Review of the Franklin Pierce Center for Intellectual Property B. Resistance to Racism and Racist Representations of the Other ..................................................................... 587 III. Habermasian Public Sphere Theory: Early Thoughts ……………………………………………………..591 IV. Was the Historical Public Sphere ‘Open and Accessible’ to All? .......................................................... 599 A. Challenging Habermas’ Historical Account: Normative Implications .............................................. 599 B. Normative Modification...................................... 611 V. Deliberative Democracy in Action: Native American Counterpublics Strike Back Against Stigmatizing Trademarks, And Then There’s Simon Tam’s Counterpublic .................................................................. 625 A. The Law, as Always, Eventually Liberates (Some): Simon Tam’s THE SLANTS Case Study ................... 627 B. The Law, as Always, Disappoints: Native American Case Study .................................................................. 632 VI. Conclusion .............................................................. 668 I. INTRODUCTION The transformative Black Lives Matter (‘BLM’) global social justice movement which first gained prominence as a hashtag, #blacklivesmatter, has shone a harsh light on endemic structural racism in Western civil societies, especially as it relates to police violence and the hegemonic treatment and perceptions of oppressed minorities. A small but important consequence of this powerful racial justice-seeking counterpublic is the long overdue mobilization of the contemporary public sphere against various harmful racist tropes reproduced and 61 IDEA 545 (2021) The Belated Awakening of the Public Sphere to Racist Branding and Racist Stereotypes in Trademarks 549 reinforced in racist trademarks and associated commercial branding referencing people of color.4 These welcomed changes did not occur in a vacuum. Sustained counterpublic contestatory efforts by marginalized groups (and their supporters) in the public sphere and, in some cases, through trademark law had earlier laid the necessary groundwork that eventually forced the demise of time-honored stereotypically-racist trademarks. Icons of Black servitude embodied in trademarks such as AUNT JEMIMA,5 UNCLE BEN,6 MRS 4 For a historical and legal analysis of the differences between the wider concept of ‘brands’ and the narrower concept of ‘trademarks’, see, for example, John Mercer, A Mark of Distinction: Branding and Trade Mark Law in the UK from the 1860s, 52 BUS. HIST. 17 (2010); Stefan Schwarzkopf, Turning Trademarks into Brands: How Advertising Agencies Practiced and Conceptualized Branding, 1890-1930, in TRADEMARKS, BRANDS AND COMPETITIVENESS (Teresa da Silva Lopes & Paul Duguid eds., 2009); Alexandra George, Brand rules: When branding lore meets trade mark law, 13 J. BRAND MGMT. (2006). 5 For counterpublic academic agitation, see for example, Riché Richardson, Can We Please, Finally, Get Rid of ‘Aunt Jemima? N.Y. TIMES (June 24, 2015), https://www.nytimes.com/roomfordebate/ 2015/06/24/besides-the-confederate-flag-what-other-symbols-should- go/can-we-please-finally-get-rid-of-aunt-jemima [https://perma.cc/Z5R2-A94S]; Samantha Kubota, Aunt Jemima to remove image from packaging and rename brand, TODAY (June 17, 2020, 7:04 AM), https://www.today.com/food/aunt-jemima-remove- image-packaging-rename-brand-t184441 [https://perma.cc/ZHZ2- ZNCC]. Note how the company is very selective in its wording, conceding that Aunt Jemima is based on a “racial” (i.e., not racist) stereotype. 6 Press Release, Caroline Sherman, Uncle Ben’s Brand Evolution, (June 17, 2020), https://www.mars.com/news-and-stories/press-releases/
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