Trademark law sustains itself through trading racist images of Black people which dehumanize them, sway elections, and paint them as inherently stupid—refuse the protection of these images

At first blush, as Alex Johnson, Jr. has remarked, “the law of trademarks would seem to have little to do with issues of race and racial identification.”50 Trademark law provides protection to trademark owners against unauthorized use of their own or a similar mark, when it is likely to lead to consumer confusion.51 On closer examination, however, Johnson demonstrated that “the principles of trademark law provide surprising insight into the formation of dichotomous racial classifications in the United States.”52 Trademark law is inextricably tied to advertising and marketing. As Desiree Kennedy pointed out, advertising “is an important means of public discourse . . . [and] . . . is instrumental in affecting viewers’ perceptions of their world and their interactions with others.”53 Further, Lew Gibbons noted, modern trademarks play a large role in shaping “individual and group social identity.”54 The history of advertising, and the role of trademarks therein, is one rife with stereotypical images.55

Trademarks used in advertising can impact more than just commercial transactions; media images “are frequently the predominant source of information many have about people of color.”56 In the same way that “coon” music in early America reflected derogatory anti-black stereotypes, so did trade symbols used to sell products. Historically, trademarks and symbols almost perfectly replicated cultural stereotypes about black men and women. From Sambo and Ratus, the grinning chef on the box of Cream of Wheat cereal, to Uncle Ben and Aunt Jemima, trademark law essentially legalized and promoted the use of stereotypical representations of blacks and other minorities. Additionally, it has been said that “twentieth century white identity was forged in the crucible of Jim Crow iconography, including Aunt Jemima, Uncle Ben, and blackface minstrels.”57 These idyllic southern stereotypes of the smiling, happy black domestic servant could be seen as “myths [that] masked the ugly violence of lynching, disenfranchisement and segregation.”58

In the case of black men, history shows the durability of three stock prototypes: the “Tom” character, the “Coon” character, and the “Buck” character.59 “The Tom caricature portrays Black men as faithful, happy, submissive servants.”60 An example of this in trademark law is Uncle Ben, the elderly black man used to sell rice. He is comforting, non-threatening, de-sexualized, and there to serve whites.

The Coon character, in contrast, is lazy, shiftless, and unintelligent, yet cunning in obtaining vices he enjoys.61 Amos ‘n’ Andy, examples of Coon characters, were characters created for a radio show in 1928 that went on to “become one the country’s most popular radio programs.”62 The characters were black, but initially played by whites—the show’s creators—on the radio, who posed in blackface for publicity photos. When the show went to television in 1951, black actors took over in the lead roles. Amos ‘n’ Andy was protected by both copyright and trademark. In the 1980s trademark litigation ensued over whether CBS, which had discontinued the show in the 1960s after protests by civil rights advocates, abandoned and therefore lost legal rights in the Amos ‘n’ Andy mark.63

Similarly, Sambo’s Restaurants used the symbol of a smiling Coon-type character to sell food products for over sixty years. “Little Black Sambo” was a literary character that “has long been a part of the American culture,” dating back to a 1781 play “where the black male Sambo character, played by a white actor in blackface, ‘danced, sang, spoke nonsense, and acted the buffoon.’”64 After numerous complaints from civil rights activists and lawsuits by municipalities seeking to prevent expansion, Sambo’s Restaurants changed its name to “Sam’s” in 1989.65

The Buck character is a brute, and could represent the worst fears of early white America—that of the hyper-sexual black male intent on getting access to white women’s sexuality.66 The Buck character surfaces in political marketing, a fairly recent incarnation, being the “infamous television spot from the 1988 presidential campaign” of George Bush, Sr., featuring released criminal Willie Horton.67

Stereotypes with roots in trademarks have stigmatized African-American women. It has been noted that “American history is replete with ‘slaverooted’ images of African-American womanhood.”68 Three negative stereotypes exist regarding black women: the “Aunt Jemima” type, a domestic servant; the “Mammy” type, a typically domineering, matriarchal figure; and the “Jezebel” type, a highly amoral, sexualized representation.69

Trademark law derives its authority at the federal level from the Lanham Act of 1946. The Lanham Act prohibits the trademarked use of racially derogatory images, but limits the trademark registration of such images under Section Two, part of which prohibits the registration of a mark that consists of or comprises “scandalous” or “immoral” matter.70 Further, trademark law prohibits the registration of trademarks that may disparage—i.e., bring into contempt or disrepute—living or dead persons, institutions, beliefs, or national symbols.71 In recent years, groups including Native Americans and African-Americans used Section Two of the Lanham Act to cancel the registration of racially offensive trademarks.