Commentary
Carpet Bombing: When Trademarks Do Harm
- by Bob Garfield , Featured Columnist, May 26, 2015
This brief essay is about dance
music, racism, sexism, Batman, nine bullet-riddled bodies and the Lanham Act. So, you know, the usual laser approach to subject matter.
One might say deep focus is my trademark -- except that legally it definitely is not. Legally, “Deep Focus” is the trademark of some marketing agency, which filed for the mark May 15, 2006 in Class 35: “Advertising; business management; business administration; office functions.”
This registration is filed under the provisions of the Lanham Act, the 1946 statute governing property rights for brand names, logos and so on. It is meant to avoid marketplace confusion, whether unintentional or with mischief aforethought. The problem is that some issues don’t lend themselves to legislative solutions.
For one thing, when intellectual property attorneys wedge themselves between the federal government and business, the billings and absurdity tend to run wild. The other thing, which I shall get to presently, is that deep focus on the value of the trademark can result in a perversion of other values, such as human dignity, and life and death. But let us begin with absurdity.
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The pop star Rihanna, because she is a pop star and she simply can, feels she must also reign over a fashion and cosmetics empire -- and maybe an associated magazine -- branded with her given first name “Robyn.” So naturally, DC Comics is objecting, because it owns the trademark for Batman and Robin, and obviously this would flummox both the worlds of mascara and comic books. Boy, wonder why these frivolous challenges are lodged?
Because lawyers.
Then there is the case of the Washington Redskins -- who in fairness were named in less enlightened times, before the entire civilized world realized it is grotesque to characterize (and marginalize) racial groups by crude stereotypes or physical characteristics. I mean, we flinched when Hitler did it. Frito-Lay, Chief Noc-A-Homa and Sambo’s, not so much. When five Native Americans successfully petitioned the Trademark office to cancel the Redskins on the Lanham Act grounds of unlawful disparagement, Washington Redskins owner Daniel Snyder sued them.
Because pride.
Snyder insists the name -- The Washington Stingy Big Hooked Noses, I mean Redskins -- honors Native Americans.
In fairness, before judging him too harshly, bear in mind that Snyder is repulsive.
But in trademark law, disparagement protection giveth and it taketh stupidly away. The Seattle dance band The Slants -- composed entirely of Asian Americans who take ironic delight in reclaiming an ethnic slur and literally owning it -- applied for trademark protection for their own name. They were denied.
Because bureaucrats.
On the plus side, nobody died. In Waco, Texas a week ago, nine people died when rival outlaw biker gangs the Bandidos and the Cossacks shot it out in the parking lot of a sleazy chain restaurant (trademarked Twin Peaks, after the breasts displayed by the chesty wait staff.) What was the gunfight all about? The Texas Rocker, a vest patch denoting territory. Both gangs, approximately like DC Comics and Rihanna, believed they deserved to display it. That horrific episode, one is obliged to concede, might argue for a legislative solution.
But what about a trademark case not governed by the Lanham Act or any other law, because the trademark in question is not registered but merely understood? I refer to the Cannes Film Festival Red Carpet. Every May, celebrities traipsed its length, ascending the stairs into the Palais des Festivals. The dress code is black tuxedos for men, dresses and high heels for women.
Because glamour.
But this year, some women who did not wish to be in pain all evening, or who simply didn’t want to prop up their calves and butts to entertain men (including, I confess, me) and who wore low heels or flats, were pulled off the red carpet and denied entry. This, by the way, in a year supposedly dedicated by the festival to gender equality in films. Uh-huh.
Now, it may well be that the Faustian bargain for Hollywood stardom brings with it indentured servitude to fashion, including the blisters, backaches and bunions that go with it. But enforced high heels as a price of entry? In order to preserve the trademark fashion of the red carpet?
That’s not fashion; it’s fash-ism. And if that is how Cannes want to present itself to the world, let Thierry Fremaux and his retrograde team well understand. It doesn’t matter what certificates you are holding; you get the trademark you deserve.
Bob Garfield, former editor at large for MediaPost, is a long-time public radio personality who currently hosts Booksmart Studios' "Bully Pulpit" podcast. A 30-plus-year commentator on media and marketing, he is co-host of public radio's Peabody Award-winning “On the Media” program; senior fellow at Wharton Future of Advertising Program, SEI Center for Advanced Studies in Management; founder of the Media Future Summit and author of five books.
Here's another thing about trademarks. Many marketers talk about how the consumer owns the brand. As CEO of P&G, A.G. Laffley said back in 2006 "Consumers are beginning in a very real sense to own our brands and participate in their creation”. And from a human behavior perspective this makes great sense -- people put a greater value on something they feel ownership of (this is a principle called the endowment effect -- something I cover in my book "The Business of Choice: Marketing to Consumers’ Instincts” (http://amzn.to/1B4ENam). But slathering your brand and marketing with TM and copyright symbols sends a conflicting signal -- that the brand is the property of a corporation. That's not exactly 21st century marketing...
If this somehow leads to a mash-up where Batman and Robin team up to beat the tar out of Daniel Snyder and Rihanna, I demand points. Because ca ching. (Also, Daniel Snyder getting hurt.)
"Go Tell It On A Mountain"
On the Washing "Redskins", here in Tulsa, we have the High School, the Union "Redskins". Interestingly this high school is located close to 8 miles each from two of the largest Indian Casinos owned by the Creeks and Cherokee Tribes. Neither the of these tribes are advocating that Union High School to change it's mascot "Redskins" name. The reason is simply, the backlash against the tribes would be so large that it would cost them millions of dollars in revenue. So is it really in the best interest of the Indians who disagree with the name?
Last, if the Indian's who have a problem with the name strongly enough, they could also take one or two other actions. One is to pay for the cost to change the name. The other, buyout Daniel Synder ownership of the team and then change the name.
Washington's NFL franchise would make a great deal of money from a name change (http://espn.go.com/nfl/story/_/id/11419303/washington-redskins-losing-money-keeping-name), and no team has ever lost money from changing away from a slur name. So he's not selling, and the idea that you should pay someone to stop using a racial slur is, well, novel. I'll be nice and call it novel.
This isn't about any loss to Snyder; it's about someone telling him he's wrong. About anything.
Craig McDaniel's comment refers to the Cherokee "tribe." Unless I'm mistaken, shouldn't it be Cherokee nation, which is made up of various tribes?
Chuck in Oklahoma all of the Indians Tribes use both Tribes and Nation. I did some marketing developement for the Cherokees and both was used in our talks. Tribe tends to be used more in religious and sacred reasons while Nation is used more as the legal meaning of their geographical boundries which they rule. For example I know of a person who was caught smoking pot in his own car but at a Creek Indian Casino. They have the power to fine this person $600.00 for the violation. Right or wrong they do have rights and a legal system that once you are on their property, your rights as an American can be taken away.
My overall opinion about the Washington Redskins name and trademark is this. I would strongly defend my rights to "Sweepstakes Today", or "Mr. Sweepy" the companies logo. There has to be that right to defend legal ownership of a name or logo or nickname if for any reason, our rights to free speech. We can agree or disagree with anything anyone says, writes or supports in belief whether we like or dislike what is being said. Trademarks protects our free speech rights.
Craig: Thanks for that info on tribes and nations. I only gave you four stars though, due to your last sentence: "...once you are on their property, your rights as an American can be taken away."
I think you'd have to agree that "they" are in fact the "Americans", while the rest of us are just the new neighbors from way, way out of town.
Chuck, a year ago Memorial Day weekend, I went to play poker at the Cherokee Hard Rock Casino. The Cherokee Police was hauling out a drunk. Real life, people get drunk. However the Cherokee Police officer had his hand cuffs behind the guy back and instead of helping him up when he stumbled down, he picked him up by the hand cuffs. He was forcing his shoulders in a very painful position. The same kind position that the Vietnamese used to tortured against "Americans". The drunk was screaming in pain and maybe his shoulder's were dislocated. I don't know but I will not forget the screaming from the pain the guy showed. Guess what? This guy had no rights to sue for being tortured in US District Court. He would have had to gone to Cherokee Nation Indian Court. This is the real world in Oklahoma. Wake up.
That's the real world, anywhere you look. And I'm wide awake.