Years ago, Justice Frankfurter observed, "the protection of trademarks is the law's recognition of the psychological function of symbols," noting, further, “if it is true that we live by symbols, it is no less true that we purchase goods by them.”
As a college student, one of the most powerful purchases I ever made was of a T-shirt created by the AIDS activist group ACT UP, which contained a triangle marked with the slogan SILENCE=DEATH. I wore that shirt until it was tattered beyond repair, and almost 25 years later, it still goes down as one of the best purchases this trademark professor ever made. Today, the pink triangle is one of the most popular international symbols of gay pride, second in power only to the rainbow flag.
Yet, at the time, in the early 1990s, it seemed revolutionary to use the very same triangle that had been used to mark homosexual male prisoners in Nazi camps as a symbol of gay liberation. That is the power of a symbol – something that originally was meant to mark individuals for death can be semiotically recoded into something that turns out to be liberatory, metaphorically a source of life itself, excising the shame that the symbol originally communicated.
Brands and trade symbols are not just pictures. They implicate the very force of identity, which can form and recode itself according to the dynamic pull of public culture. But there are certain marks that remain disparaging by the communities that are targeted by them, and that is precisely why we need the force of law to limit its protection of them.
The Washington Redskins brand, for example, implicates a painful slur that has – to my knowledge – never been reclaimed, or even suggested as a symbol of pride by Native Americans. But there are examples to the contrary. Every gay pride parade in this country usually includes a group called Dykes on Bikes, a trademark that was once found to be disparaging by the Trademark Office, which eventually reversed its position after reviewing significant evidence showing how the term had changed from an insult to a source of lesbian pride.
The same, here, may very well be true of The Slants, a Portland-based Asian-American dance band, that thrives on the very same mixture of irony and semiotic activism that defined the L.G.B.T. rights movement. The band's leader Simon Tam, has stated that the name was chosen "to undercut slurs about Asian-Americans that band members heard in childhood, not to promote them.” Just like the brands that it protects, trademark law is sufficiently flexible – and expansive enough – to tell the difference between a brand that is disparaging and a brand that is not. The only question is whether the government will use its power to register the trademark.
Even if a mark is found to be disparaging, it can still be used by its owner; there is no concrete prohibition on speech. We’ve long entrusted government agencies to exercise content-related considerations where commercial speech and advertising is concerned in order to protect the consumer; this issue is no different.
Crossposted from the New York Times.