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​The Branding of Political and Social Justice Movements

3/6/2019

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Jabreyl Thomas 
One of the many ramifications of social media has been the rise in various forms of online activism. We typically encounter this online activism in the form of a phrase or slogan used as a message to create awareness, share information and organize action around a particular cause or issue. In the past few years, the number of trademark applications for phrases created from political and social justice movements has drastically increased. #MeToo, Black Lives Matter, Justice for Trayvon, and September 11, are textbook examples of the kind of social and informational messages that many have tried to register as trademarks.
The purpose of a trademark is to serve as a source identifier for consumers, allowing them to identify and distinguish a particular source of goods and services. Thus, if a proposed trademark is merely an informational, social, or political message, it fails to function as a trademark. The USPTO has not been receptive to the branding of social justice movements. While it has not been explicitly stated, the USPTO may be reluctant to grant registrations of this sort for fear that disinterested parties may try to capitalize on every social justice movement in the future. Accordingly, many of the applications stemming from these movements are unsuccessful and abandoned post filing once they receive office actions from the USPTO.  
A specific example of social movement branding can be found by analyzing the trademark applications stemming from the 2012 Trayvon Martin killing. At least nine trademark applications were filed surrounding the death of Trayvon Martin, yet only two were successful. 
Trayvon Martin’s mother, Sybrina Fulton, filed two trademark applications, “I Am Trayvon” and “Justice for Trayvon”, immediately following the killing of her son. Both phrases were rallying cries created during the community protests demanding the arrest of his killer, George Zimmerman. Not only where these phrases used on signs, many protesters began selling apparel and other consumer goods with the same phrases. Fulton received mixed feedback based on her actions. Cynics suspected opportunism and proffered that the commodification depleted the message, while others felt that Fulton was well within her right to take pre-emptive measures to prevent others from profiting or exploiting Trayvon’s name. 
Many outside parties, attempted to profit from Trayvon Martin’s name, submitting trademark applications such as, “#peacefortrayvon”, “Justice for Trayvon”, and “Justicefortrayvon.net”. Many of these applications were sent refusals under Trademark Act Section 2(d) and Section 2(a), respectively. The primary concern with allowing the branding of social justice movements, as seen here, is the consumer’s likelihood of confusion. A consumer would likely believe that products stemming from the aforementioned marks were associated with Martin’s family; however, that is not the case. Moreover, granting these marks would support a false connection between the products and Trayvon Martin. 
Defensive registrations, such as Fulton’s pre-emptive action to prevent profiteering from outside parties, often backfire because they do not meet the trademark requirements. Although used as an effort in weeding out those using Martin’s name in bad faith, defensive registrations are often not practicable because they are not intended to be used in commerce. Martin’s family ran into this issue multiple times when the USPTO required an acceptable identification of services and sent an office action for title of a single work. As such, the two trademarks that were successful did not happen overnight. 
            Ultimately, the only two trademark applications stemming from the Trayvon Martin killing that have been successful are “I Am Trayvon” and “The Trayvon Martin Foundation”. It took over two years and multiple efforts to successfully register the mark “I Am Trayvon”. Similarly, it took over four years to successfully register the mark “The Trayvon Martin Foundation”. The length of time, among other factors, it took Martin’s family to successfully register marks stemming from his death speak to the reluctance of the USPTO to grant trademarks stemming from social justice and political movements. Due to the continued growth and pervasiveness of social media activism, I do not foresee the USPTO changing their stance in the near future. 
 
 
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BLOODY SHOES BY JASMINE BURTON

3/3/2019

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Picture


This week I did my presentation on Christian Louboutin’s red lacquered outsole on their footwear, also known as “Bloody Shoes!”  In a recent decision, European Union’s highest court ruled that Christian Louboutin’s famous red sole shoes are eligible for protection as a trademark.  This decision expanded the opportunity for U.S. and European fashion designers to promote and protect their color brands in the European Union.  Prior to the suit being filed in the European Union, Louboutin’s first major attempt at enforcing its mark in the U.S. occurred in 2011, following Yves Saint Laurent introducing a red shoe design on the market.  Louboutin brought suit in New York federal court claiming that YSL had infringed on its 2008 U.S. trademark.  YSL, on the other hand, was arguing for cancellation of the mark in its entirety based on the alleged functionality of the mark, because according to Qualitex, color that is determined to be “functional” is not eligible for trademark protection.  The court ruled that that Louboutin’s red sole shoe mark was valid!  Just when he thought it was over, Van Haren launched a collection of high-heeled shoes complete with red soles in 2012.  Louboutin responded with a trademark infringement lawsuit against the company, arguing that the Dutch brand was causing confusion amongst consumers and argued that Van Haren was looking to profit from Louboutin’s world-famous red sole, which was a registered trademark years prior to Van Haren’s collection.

The European Union’s decision opens doors and provides U.S. businesses with a clear opportunity to expand on the promotion and marketing of their products in Europe by designing products that are identifiable by their color.  It also gives opportunities for brands based in Europe, like Valentino and Hermes, to do the same.  However, although this opens several doors, there are several social justice issues raises as well.   This can be unfair to up and coming designers because if the color red can get trademarked, then, theoretically, all colors can become trademarked.  If all of the main colors become trademarked, then how would new designers be able to diversify themselves?
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Additionally, despite both of these decisions, there are still other pending cases that could change the precedent!    Tiffany & Co. filed an amicus brief with the Second Circuit questioning the validity of a bright-line rejection of color marks in fashion.  Despite the Louboutin decision, it is still difficult to protect colors as trademarks through registration, as a color as such was not considered to be a distinctive trademark.  Furthermore, despite the recognition which must be accorded to color trade marks in most countries, the graphical representation of such marks sometimes constitutes a problem for trademark owners seeking to protect their marks, and different countries have different ways of dealing with these types of marks.

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