Racist Trademarks and Consumer Activism: How the Market Takes Care of Business

By MacKay, Jake | Law and Psychology Review, Annual 2018 | Go to article overview

Racist Trademarks and Consumer Activism: How the Market Takes Care of Business


MacKay, Jake, Law and Psychology Review


I. INTRODUCTION

The Washington Redskins' trademark has caused severe backlash against the team from activists who claim that the trademark is hate speech that disparages Native Americans, leading the United States Patent and Trademark Office ("USPTO" or "PTO") to consider cancelling their registration. (1) However, the law preventing a person or organization from trademarking a mark that disparages or demeans a group of people has been struck down as unconstitutional in the recent Supreme Court decision of Matal v. Tam. (2) People and organizations will now be allowed to trademark derogatory, disparaging, and racist marks. What will this mean for the future of trademark protection and hate speech, and how will this affect consumers' mindsets in a free marketplace?

This Note evaluates the Court's decision in Matal v. Tam, in which the Court held that the Disparagement Clause was unconstitutional as a violation of the Free Speech Clause of the First Amendment. (3) This Note will provide context for the Matal decision by outlining the relevant case law preceding the decision and then give an overview of the Court's rationale in the decision itself. This Note will conclude with an analysis of the impact that Matal may have on the future of disparaging or racist trademarks and other hate speech, the psychological effects of disparaging trademarks on consumers in the marketplace, and potential solutions to limit disparagement and hate speech's negative impact on society.

II. PRIOR LAW AND PERSPECTIVE

A. Trademark Law and the Lanham Act

Trademark law gives an artisan a protected way to distinguish her goods from her competitor's goods. (4) A trademark is "a distinctive mark, symbol, or emblem used by a producer or manufacturer to identify and distinguish his goods from those of others." (5) It allows a consumer to easily identify the product's source, aiding in his decision making. (6) When a product is trademarked, consumers can pick the goods or services that they wish to purchase or avoid without having to intensely inspect each product. (7)

Trademarks are a common law creation with ancient origins that predate the founding of the United States. (8) The early Roman Empire required manufacturers to mark goods as a sign of the quality of their work. (9) Trademarks first developed in the West when the Industrial Revolution began to deteriorate the direct relationship between customers and manufacturers. As a result, manufacturers in Great Britain and the United States increasingly marked their goods in a distinctive way to separate them from their competition. (10) Early on in the United States, the Supreme Court held that the primary function of trademarks was to "identify the origin or ownership of the article to which it is affixed," (11) assuring consumers that the goods were of a higher quality by tying the manufacturer's reputation to the goods.

The first comprehensive federal protection for trademarks came in 1905 with the passage of the Trade-Mark Act. (12) The latest federal trademark protection is codified in the Lanham Act, which allows for federal registration of trademarks through the USPTO. (13) The Lanham Act does not create new property rights in the mark, but, among other benefits, "valid registration ... secures to a registrant, and to his successors, the right to sue for infringement in a federal court." (14) Even without federal registration, protections for a trademark may be enforced under the Lanham Act if the mark is valid under the common law. (15)

The Lanham Act's Disparagement Clause allowed the USPTO to reject a trademark that "may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." (16) The USPTO guidelines instructed examiners to apply a "two-part test" to determine whether a trademark was disparaging. (17) The first part of the test considered the "likely meaning" of the mark in question. …

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