ABSTRACT
Trademark law has become the new frontier of union-busting. Companies like Trader Joe’s, Starbucks, and Medieval Times have brought unprecedented suits against their employee unions for trademark infringement in relation to their organizing activities. This sort of litigation puts courts in the difficult position of reconciling trademark protections with unionization rights. Their attempts to apply standard trademark doctrines in this context reveal a deeper problem: current trademark law is incoherent when applied to labor unions.
This incoherence stems from the fact that today’s trademark law has become disconnected from the reason trademark law applies to labor unions in the first place. This Article recovers that basis by tracing the evolution from pre-Lanham Act denial of trademark protection to unions, through sui generis state statutory protection, to modern federal collective and certification marks.
Through a historical analysis of union names and labels and their protection, I demonstrate that trademark law applies to labor unions on a fundamentally different normative basis than standard trademark doctrines. Unlike conventional trademarks that indicate the source of goods or services, union names and insignia are instruments of labor solidarity. They combine political association with economic action to advance workers’ collective interests. Contemporaneous with their proliferation, union labels were commonly understood to be ‘weapons’ unions deployed in ‘warfare’ against employers. Unions used them to agitate for unionization and coordinate boycotts, rather than merely indicate source. Congress embraced this understanding when it extended trademark protection to union marks.
Courts currently struggle with union-trademark disputes because they haven’t yet recognized that labor solidarity is the core normative basis for bringing union names and insignia within trademark law’s scope. Courts don’t need to force union marks into ill-fitting standard trademark doctrines focused on consumer confusion. Instead, they should analyze these disputes guided by the value of labor solidarity. Labor solidarity, as a beacon, illuminates what is truly at stake and how courts can target harm in ways consistent with trademark law’s historical accommodation of labor interests.
This reframing has immediate practical importance as the Ninth Circuit considers the Trader Joe’s appeal and similar cases emerge. If courts ground trademark analysis in labor solidarity rather than source indication, they can adapt existing doctrines to protect legitimate union organizing while preventing actual consumer deception. Trademark law can serve its intended function, rather than become a tool for union suppression.
Mazzurco, Sari, Source and Solidarity (August 5, 2025).
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