Augmenting the “reasonable consumer” is a faux for protecting the “white reasonable man” which solidifies racial differentiation as the standard for consumer society

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 63-65, 2020

At a basic level, the Doctrine of Consumer Confusion evolved in the context of racial capitalism in the United States. In the 1920s, as Fordism was taking root in the nation with the production of the assembly line, capitalism remained fundamentally racialized. Manning Marable observes that at the heart of economic prosperity in the United States was a fundamental anti-Blackness, one that ensured the systematic underdevelopment of Black communities.178 Similar arguments can be made of Native American and Latinx peoples, who were objects, not the subjects, of capitalist growth. In this context, trademark law developed to protect the real property interests of a new class of capitalist producers and consumers, who were never contemplated to be people of color.

In trademark law, the “reasonable consumer” is the analogue to the “reasonable person” of civil and criminal law. As feminist legal scholars contend, he—not the feminine “she” or the gender-neutral “they”179—is imagined as the sometimes hapless and often unsophisticated victim of attempts to pirate and counterfeit name-brand items and free ride on the reputation of an established brand. Yet because in the 1900s, the Doctrine of Consumer Confusion and trademarks themselves rhetorically interpellated people of color as property for citizens to consume and not as the ones acquiring property, the (white) reasonable consumer was an economically important citizen buyer whom companies sought to protect from deception and deceit. As such, trademark doctrine itself participated in the formulation of an ideal citizenry, with trademarks serving as vehicles for doing so.180 As with the reasonable person, the consumer who is confused by similar products was and remains largely by default imagined to be part of the generalizable white majority, not a minoritarian group.

Take, for instance, an early Maryland case that aimed to protect “ordinary purchasers purchasing with ordinary caution.”181 This early description of the “reasonable consumer,” in 1879, was likely to describe the white men, not women, people of color, or the intersections thereof. While it is difficult to prove the race of the parties in consumer confusion cases, the beliefs of the time suggest that there was nothing “ordinary” about people of color in the late 1800s and that the level of caution they exercised, given the repeated racial scripts of the era, was unlikely to rise to the level of “ordinary caution” even in the best of circumstances. The same case speaks of “fraudulent or colorable imitation,”182 a legal standard that in cases like Chaplin and Supreme Records was often heavily racially biased against people of color and continued to be so well into the mid-1900s.

Over the years, the legal standard for defining the “reasonable consumer” evolved to include those who were “paying ordinary attention.”183 While that turn of phrase was more spacious than previous legal standards, it was still based on the court’s imagining of “ordinariness,” a term that, given beliefs about the desired racial composition of the nation, the boundaries of citizenship, and racialized imaginings of intelligence and sophistication, was unlikely to center the perspectives of people of color. By the mid-1900s, trademark law had developed nuanced tests for considering whether “consumer confusion” had occurred. However, as feminist intellectual property scholars demonstrate, even those tests were applied by a predominantly white, male, middle-class judiciary whose politics in the pre–civil rights era were historically unlikely to align with those of people of color.184 Given the scopic regime that informed trademark law, the manner in which “reasonable consumer” and “imitation” were defined, and the identity of the judiciary suggest that “consumer confusion” was raced white in ways that supported and upheld an economy built on whiteness as property and racial capitalism not equity and inclusion.

Imagining the consumer in this way created a particular and narrow vision of confusion, one that did not take into account the needs of people of color or even their potential role as consumers in the rapidly growing American economy.185 Moreover, it resulted in the formation of a consumer market in the United States that was based on an implicit theory of white domination and white fragility. While litigants of color could likely make some limited claims for trademark infringement, they nonetheless faced a number of structural barriers to winning. Laura Heymann notes that both the “reasonable person” and the “reasonable consumer” are “more like a rule than a standard” and that in order to ensure consistency in precedent and the marketplace, “there is a tendency—in fact, a need—to treat this person as monolithic.”186 The homogeneity of the “reasonable consumer” coupled with the inability of people of color to file claims allowed the Doctrine of Consumer Confusion to become a vehicle for protecting white supremacy and whiteness, even through race neutral language. Coupled with the images that trademark law circulated, trademark law played an important role in constructing American citizenship as a category intended to protect whiteness as property, by way of a male consumer gaze.