Tushnet is wrong – empirical evidence and historical analysis

Anjali Vats, “COLOR OF CREATORSHIP – Author’s Response”, The IP Law Book Review 16 (2022), June 2022, https://scholarship.law.pitt.edu/cgi/viewcontent.cgi?article=1528&context=fac_articles

While (racial) capitalism can improve the situations of some, operate as harm mitigation so to speak, it alone cannot, at least in its increasingly unregulated forms, produce equity of any type. In fact, the neoliberalism that Lauren Berlant argues anchors trademarks to nation is an integral part of the superstructure that produces inequity. In this way, Professor Tushnet’s observation that likelihood of consumer confusion is not connected to racialized outcomes is and is not true. On the one hand, she is correct that this is a place in which the argument of the book is underdeveloped, i.e. I do not delve into the cases through which race is mediated via “confusion.” On the other hand, I maintain that the optics of racialization that I am attempting to pin down are built into the larger dynamics of trademarks. Professor Greene writes about how the doctrine of consumer confusion, beginning in the early 1900s, became a tool of (White) robber baron capitalism, shutting out competition in a cutthroat manner. Rosemary Coombe shows this as well, by centering trademarks as important mediators for alterity. In foundational scholarship on trademarks and coloniality, she shows how brand loyalty was a means of encouraging White consumers to invest in the nostalgic racial hierarchies that anchored the post-Emancipation world. I demonstrate how unfair competition cases that evolved into copyright and trademark doctrine, especially those involving Aunt Jemima, normalized White ownership of Black people and their likenesses. Derogatory images perpetuated through (White) judicial interventions relating to consumer confusion were the currency of trademark law. The likelihood of consumer confusion was conceived and produced in a world of (racial) capitalist looking, sustained through the (White) judicial entrenchment of everyday violence. Thus though trademark owners may not be “authorial” or “inventorial” in a literal sense, they play a role in upholding a regime of what Michel Foucault would speak about as power/knowledge in which people of color are systematically diminished by trademarks as well as copyrights and patents. Similarly, as Richard Schur contends, the doctrine of dilution functions as a mediator of purity, one that frequently interfaces with fears of miscegenation. In this respect, dilution cases need not take on race in order to contribute to racial harm. The mere rhetorical invocation of dilution, whether caused or embraced as a result of White racial anxieties, reinforces a fear of mixing that is embedded within narratives of race itself. Professor Tushnet and I seem to be in agreement that the moralization inherent in dilution law is problematic insofar as it adds a layer of potential cultural contempt over top economic concerns. In my mind, the array of issues that Professor Tushnet points to are important ones—but that fact mainly highlights that issues of race deserve more consideration.