The American culture surrounding the trademark and the aff’s reforms represent the prohibitive and disgustingly exploitative nature of intellectual property. Vote neg to endorse a public sphere transformation of trademarks that provides a medium for the challenging of social exclusions and the revolutionization of the transcension of the given realities of the bodily status of the Other

This anecdote attracts both our cultural and legal attention. Capturing the central role of trademarks in national culture, it also points to a politics of ownership and protest. Accounting for its significance theoretically, however, is no easy task. Somehow, it resists easy accomodation in any of the dominant approaches towards the commodified imagery of late capitalism. Neither Jameson's (1991) modernist nostalgia for our "real" history (now lost in the proliferation of media imagery), nor cultural studies celebration of consumption as a potential practice of resistance and self-affirmation (Ross 1988; Mercer 1989), nor Walter Benjamin's optimism for the transcendant potential of the commodity's fetishism (see Taussig 1993), do justice to the dilemma posed by the GollyR. Even the postcolonial remains somehow inadequate to characterize contemporary challenges to the circulation of those commodified signs that continue to embody colonialism's Others in conditions of mass commerce.

Scholars developing the concept of the "public sphere" (Calhoun 1993; Garnham 1993; Polan 1993) advocate increased attention to the cultural politics that engage the commodified signs of mass media culture because of their significance in making contemporary politics and producing subjectivities. Mass media defines and codes desire: as Michael Warner puts it, "we have brand names all over us" (1993:242). Trademarks, he suggests, are constitutive parts of a public sphere--constructing a common discourse to bind the subject to the nation and to its markets (243). I would hasten to add that some of "us" and our ancestors are, in fact, legally brand names: Cherokees, Oneida, Seminoles, Winnebago, Crazy Horse, Aunt Jemima, and Uncle Ben. Some of "us" may have trademarks all over our bodies, others of "us" have bodies that are all over the commercial landscape as trademarks.

My recent work (Coombe 1991a; 1991b; 1992a; 1992b; 1993a; 1994; 1995; Coombe and Stoller 1994) addresses the significance of intellectual properties in the public sphere--how they are used by subaltern groups to construct identities and communities, to challenge social exclusions, and to assert difference. Their ubiquity in commercial culture makes them particularly available for the signifying activities of others, and the fact that they are everywhere the same seems to invite others to use them to inscribe social difference. The law of trademark provides both a generative condition and a prohibitive boundary, thereby managing mimesis (authorizing true copies) while it polices alterity (the resignifications of others). Laws of intellectual property--copyright, trademark, publicity rights--constitute a political economy of mimesis in capitalist societies, constructing authors, regulating the activities of reproduction, authorizing and licensing copying and imitation--in the service of maintaining the exchange value of texts.

Such legal forms always invite encounters with alterity: the Other that always haunts the proper name and the difference that always already occupies the space of the signature that attempts to keep it at bay. Laws that construct the concept of the unitary and self-contained work (copyright) or the mark of origin for the commodity (trademark) simultaneously prohibit intertextuality as they deny it, and in their denial give voice to the anxiety that authorship always embodies. The trademark might well be seen as the organized control of mimesis in capitalist societies; the channeling of the cultural energy of mimesis into the form of the signature--the attempt to appropriate it under the proper name. A commercial surrogate identity--prosthetic, if you will (Berlant 1993)--the trademark maintains and garners exchange value in the market.

Theorists of the "public sphere" suggest that to "think the nation" we consider the emergence of new forms of "publicness"--forms of public subjectivity constructed to interrelate collectivities and imagined national communities (Lee 1993). We need to look at the historical emergence of particular forms of mass subjectivity over the last two centuries. If, in the eighteenth century, a bourgeois public sphere was created through print, and a disembodied and universalised subject was created, it is appropriate to ask what new forms of subjectivity have been constructed in the face of new forms of media. Mass-mediated consumer capitalism creates a consuming subject with a more visual orientation and a fully mediated, but nonetheless particularized set of desires--perceived as choices, which are linked to the body through mass-mediated forms of publicity.

Lauren Berlant (1993) and Michael Warner (1993) both point to some of the differences between the bourgeois public and the mass public, and the liberal subject and the mass subject, by emphasizing their status with respect to the body. The subject of the bourgeois public sphere is disincorporated and disembodied. Embedded in the possibility of a public is a promise--"a utopian universality that would allow people to transcend the given realities of their bodies and their status" (Warner 1993:239). It is, of course, a promise that has never been fulfilled:

For the ability to abstract oneself in public discussion has always been an unequally available resource.... The subject who could master this rhetoric of self-abstracting disinterest ... was implicitly--even explicitly--white, male, literate and propertied. These traits could go unmarked, while other features of bodies could only be acknowledged as the humiliating positivity of the particular (Id.).

Access to the public sphere came in the whiteness and maleness that were denied as forms of positivity; "the white male qua public person was only abstract rather than white and male" (Id.: 239).

Asymmetries of embodiment and demarcation are argued by political theorists to be constitutive of the liberal public sphere itself (Fraser 1993):

Differences in the social world [always] come coded as the difference between the unmarked and the marked.... The bourgeois public sphere employs a logic of abstraction that provides a privilege for unmarked identities.... (Warner 1993:240).

Difference in the public sphere will usually be enunciated as mere positivity; the particular body cannot project itself in the bourgeois public sphere without ceasing to exist (later, I will suggest that in law, one can maintain a privilege for a marked identity, providing one marks that privilege with the bodies of identifiable Others). We have witnessed this time and time again, especially when it comes to the disabled, the pregnant, and others who cannot cease to occupy particular bodies in order to make public claims, and whose claims are often dismissed as "special interests." The "mass subject," as opposed to the subject of the bourgeois public sphere, has a more ambivalent relation to the body. If the public sphere offered only self-abstraction and disincorporation, the mass-mediated sphere of consumption provides opportunities for subjects to reclaim bodies, without either surrendering privilege or suppressing difference. The realm of consumer choice allegedly creates conditions for a variety of identifications and an inexhaustible supply of bodily images offered for consumption, seizure, and occupation. But if such images are private properties, protected by intellectual property laws, then the politics of such identifications take on a different configuration. If trademarks are constitutive in the commerce of mass markets, and bodily connection, representation, and desire are paramount in the construction of contemporary subjectivities, what political difference does law make when the bodily images of historical and cultural Others figure predominantly as marks of private commercial distinction?

I shall focus upon two moments, the ends of two centuries, to explore the politics of difference in the mass-mediated spheres of commerce and the sense of belonging to an "imagined community" (Anderson 1991) of "American consumers" that advertising produced. I also focus on contemporary' challenges to the imagined community. These two examples are drawn from my ongoing study of the cultural politics of trademark laws in American society (Coombe 1995). In the late nineteenth century trademark laws became for the first time federal ones in markets recognized as national, and in the United States a particularly "American" consumer needed to be constructed. In precisely the same period we see preoccupations with the frontiers of civilization and the containment of the primitive. In the late twentieth century, we witness the politicized responses of those "othered" by those late nineteenth-century processes; they assert the right to control their own representations in the public sphere. Indigenous peoples in Hawaii, for example, seek to rescue such indicia of their traditional culture as the hula and the luau from their commercial distortions in the tourist industry (see Merry, this issue). The problem, as we shall see, is that for many peoples, "their own" representations are often legally owned by others, as properties protected by laws of intellectual property.

In the late nineteenth century, we see the rise of mass manufacturing, mass communications and mass immigration. I am attempting to demonstrate that the nominal disembodiment of the American citizen (Berlant 1993) was created, in part, by a realm of national signification-- mass-advertised trademarks--that denied or downplayed the cultural and ethnic differences of some "Americans," while it emphasized the cultural differences of Others. It did so through the medium of the consuming body and the embodiment, on a national scale, of Others whose claims to an American subjectivity were complicated by contemporary relations of subjugation. The "incorporation of America" was integrally related to the corporeality of Others.

Late nineteenth century American culture was preoccupied with the nature of civilization and its alters. The discourse of commerce projected images of barbarism, conquest, and servitude to construct the subject positions of mass consumer and American citizen. Images, descriptions, and indicia that made reference to African-Americans, Indian peoples, Hispanic and mestizo subjects, as well as the perceived "tribal" groups colonized by American imperial expansion (e.g. Filipinos, Hawaiians, "Eskimos") were mass-reproduced and projected on a national scale through the medium of trademarks (hula dancers, pineapples, igloos, fur parka bonnets etc.). Through magazine and streetcar advertising, trade cards, billboards, packaging, and premium concepts of savagery and civilization, primitivism and progress were legitimated.

In early American trademark law, a mark had to be distinctive; it could not be confusing, and it could not be the name of the product itself. It had to be a mark that differentiated your wares from the goods of someone else--it distinguished your product in the market. As American markets became national and culturally diverse, the mark had to be recognizable to millions of people, many of whom were illiterate. The use of images to mark products was an early development, and manufacturers were taught the semiotics of marketing quite explicitly. One marketing manual, intriguingly titled Trademark Power: An Expedition into an Unprobed and Inviting Wilderness (1916), by one Glen Buck, lists a series of equivalences that consumers could be expected to know; one of them is a figure of an Indian with an equal sign followed by a picture of a cigar.

Manufacturers were advised to choose marks that were as distant as possible from the nature of the goods they were actually selling. Indeed, an early article in the Albany Law Journal (Anonymous 1875) suggested that foreign words, words in dead languages, and terms and images from areas of the world not known in the local market promised to be the best markers for a manufacturer's wares, precisely because their exoticism rendered them "merely arbitrary designations for the sake of distinction." Those with perceived mimetic capacities--Indians, Eskimos, children (especially twins), talking birds, animals, and "savages" of every stripe-- figured prominently as trademarks. Creatures deemed by a dominant culture to have a "sixth sense," they served to judge similitude, while simultaneously marking difference.

Businesses were advised to establish a "strong mark" that was not "descriptive," nor "suggestive," but "distinctive." In their quests for distinction, it is not at all surprising that producers turned to bodily signs of social difference--those indicia that Americans, via World's Fairs, were coming to recognize as the signs of the primitive Other that marked their own civilization. Robert Rydell (1984) demonstrates that the midway imposed an evolutionary framework upon the world's peoples in American World's Fairs between 1876 and 1916 through which Americans measured their own collective progress. Certainly, the proliferation of Indian, African, and Polynesian imagery and the ubiquity of black servants in the advertising and marketing of consumer goods at the turn of the century is quite remarkable.

Thus, social difference created a pool of cultural resources within which manufacturers fished for their own distinction--that is, the distinction they could claim as their. own. The legal basis of this claim is the old mercantile notion of goodwill. The mark that accompanies all of one's goods, and makes them recognizable, attracts the "loyalty" of consumers and, this loyalty is a valuable asset--goodwill. The positive value of one's trade is congealed in the exchange value of the sign. The trademark marks the point of origin of the good--and serves as a surrogate identity for the manufacturer--in a national market in which the distances between points of production and points of consumption might be vast.

Given what Taussig (1993) claims to be the "alleged primitivism of mimeticism," it is not surprising that manufacturers should capture the perceived mimetic abilities of the Other in the magic of the commodity's own mimetic circulation. Moreover, such advertising was often "internally refererential, an image of the miming of miming" (1993:213), for example in the ubiquitous imagery of black servants on boxes holding up boxes marked with their image holding up another box, marked with yet another black servant holding a box ... ad infinitum (e.g.: Cream of Wheat ads). In short, the bodies a mass manufacturer might claim were not likely to be his own, but legally they were recognized as embodying his distinct place in national commerce--the difference that law makes.