Columbia Journal of Law and the Arts
Colum. J.L. & Arts
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.
The consumer investment framework is ideally suited to fill this theoretical gap. It accounts for expressive and value driven decision making. It embraces the many ways we engage with marks apart from the point of purchase. In addition to purchasing trademarked products, people invest trademarks with time, meaning, and money. Open dialogue between brand managers, influencers, and fans facilitates connections through shared values. By accounting for brand meaning, communities, and values, the consumer investment theory provides a better framework for understanding the abandonment of racist imagery in a way that traditional law and economics cannot. Where law and economics fails to function as an explanatory paradigm, the consumer investment model provides a theoretical framework for understanding how trademarks function if they are to succeed and what qualities make them resilient enough to remain resonant in a constantly changing cultural environment.