From Consumer Protections to Consumers Protecting

“People always think trademark law is about protecting brands,” a supervising attorney said, advising pro bono clients over the summer. “But it’s actually a consumer protection law.” Trademarks protect brand names and logos on goods and services that identify and distinguish the source of the goods of one party from others’. When courts review trademark infringement, a significant part of their analysis is devoted to consumer confusion.

Trademark registration intersects with First Amendment protections frequently: Brands are trying to tell their story and communicate with the public, but how they do that must be regulated. Until recently, under the Lanham Act, the U.S. Patent and Trademark Office was empowered to refuse registrations for “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection.” Supreme Court cases in the last few years, however, have removed bars against immoral, scandalous, and disparaging registrations by finding that such prohibitions violate content-based restrictions on free speech.

The public, however, has come to recognize that protections against those kinds of registrations may have served a good purpose. Although disparaging registrations were allowed thanks to Simon Tam’s band’s use of the name “The Slants,” a reclamation of a derogatory term for Asian people (Matal v. Tam, 137 S. Ct. 1744 (2017)), it simultaneously opened the door for Dan Snyder’s Washington, D.C., football team to keep their name, a derogatory term for Native Americans. Significantly, it was not until the racial reckoning of this summer, in the wake of the murders of George Floyd, Breonna Taylor, Ahmaud Arbery, Nina Pop, Tony McDade--the list goes on--that the owner of the team was compelled to change the name for the 2020 season from a slur to the generic Washington Football Team. This happened because of consumer power: the result of the long-term work of Indigenous activists, combined with economic pressure.

Although public concerns about the team name--and calls to revoke the registration’s protections--have been voiced since the 1970s, only when team investors, spurred by Black Lives Matter protests this past summer, called for the name change did the team’s owner take action. Where the systems have failed us, consumers have taken means for protection into their own hands. Ironically, what was confusing to consumers was not the source of the goods, but rather why a source would continue to so arrogantly support White supremacist structures. And why sports fans would spend their money propping it up.

When consumers choose to invest in antiracist at best--not racist at minimum (a distinction with language popularized by Ibram X. Kendi but with roots in Angela Davis)--we can design systems of protection that are more robust and better tailored to our needs than legal systems. This is another form of consumer protection.

Brands are beginning to recognize that it is in their best interest to support racial equity, even if only to support their bottom line. Taylor Swift recently pulled merchandise for her album Folklore that--because it used “the” before the album name--would have caused confusion for customers seeking the Black-owned brand “The Folklore.” But not all brands see and immediately right their wrongs. 

Barkada, which means “a group of friends” in Tagalog, is also the name of a wine bar in Washington, D.C., owned by four White men. The owners received criticism for appropriating language without any evidence of meaningful engagement with Filipino culture or people. On July 30th, 2020, Barkada owners said they had fallen short of engaging with the Filipino community and that they were “actively looking to change [their] identity and brand.” Eater reported one of the owners saying that the easiest option as the restaurant moved forward would be to “remove branding and operate nameless.” He admitted a name change takes longer than 24 hours, but as of mid-January, their website, email address, and social media handles all still include the word barkada. In October, Filipino American History Month, the bar celebrated Filipino Fridays by serving drinks made with spirits from the Philippines. It seems the owners found a path forward that was more convenient for them than going nameless. 

With several Instagram commenters telling the owners to keep the name (with a Philippine flag emoji), there is no people power pushing to hold this bar accountable. While many commenters have continued to push the bar to change its name, every push is met with another commenter saying not to. In terms of economic consequences, in December, neighborhood organization U Street Main Street awarded Barkada Best Wine Bar in Shaw. Although not as flip as Dan Snyder, who said he would “NEVER” change his team’s name, Barkada’s owners are putting band aids on much deeper fissures with Filipino Fridays. Their decision to not change the name, which it appears was their ultimate decision, was not documented on their social media or in the press. This is too often how White supremacy works: simple maintenance of the status quo. Although the Instagram post announcing their name change received 2,160 likes, the Change.org petition to not change their name received 3,751 likes. White supremacy means not caring for those you hurt because you are profiting. Regardless of how many people signed the petition, many in the Pilipinx community expressed their concern at these appropriators. The owners’ decision to make a show of acknowledgment followed by a decision to not follow through on their promise to rename is emblematic of many people’s response to racism: virtue signaling without action. White supremacy is sustained by the status quo. 

Unfortunately, the only way to get companies to support a world without appropriation is to hit them where it hurts. Only if consumers and investors push a brand to be antiracist, through public shaming and spending our money elsewhere, will companies get the message that the time for complacency is over. What we do as consumers has the potential to make a difference, even when the laws are not written to help us. As seen with the Washington Football Team and Folklore, where consumer protections fall short, it is the consumers themselves who make the difference. If we have to protect ourselves, we will.

Jessica Williams

BGLJ Co-Editor in Chief 2020-2021, Berkeley Law Class of 2021

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