ABSTRACT
The generally-accepted law and economics theory of trademarks fails to explain why a brand owner would ever walk away from a trademark that generates financially lucrative returns. In 2020, that is exactly what happened again and again as brand owners pledged to abandon racially explicit marks in the weeks following George Floyd’s murder. As citizens became more attuned to the experiences of those depicted in racial marks, the owners of Aunt Jemima, Uncle Ben’s, the Cleveland Indians, the Redskins, the Dixie Chicks, Lady Antebellum and others announced these brands’ days were numbered. By evoking racist stereotypes, they became a moral liability. They could not be authentically unifying if they promoted values inconsistent with contemporary notions of equality and anti-racism. This Article situates the adoption of racially explicit brands in a historic context and explores the reactions of the targeted communities. It then explains why multiple legal challenges to these federal trademark registrations failed. The traditional law and economics paradigm used to justify and explain trademark law does not account for strategic trademark decisions driven by values and expressive community connections. While law and economics captures the essential message a symbol must communicate to function as a mark, it neglects to explain why some marks fail or, in spite of spectacular success, may be abandoned. When a theory cannot account for what is happening in practice, it is time to reach for new tools to help explain the significant role trademarks play in reflecting and leading cultural dynamics …
Gerhardt, Deborah R, The Last Breakfast with Aunt Jemima and its Impact on Trademark Theory (February 19, 2022) 45 Columbia Journal of Law and the Arts 231 (2022).
First posted 2022-03-01 12:00:14
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