Trademark law is a weapon wielded by white supremacist powers that seek to reduce blackness to a figment of the imagination drowned out by appropriation and exploitation.

Trademark law responds to completely different needs than those of copyright law, due to being addressed to different beneficiaries and being built upon different policy goals. Trademark refers to a registered mark that distinguishes the goods and services of a business enterprise from those others. 1086 Unlike copyright (or patent), trademark law does not require the mark to be original (or novel), but to be distinctive. 1087 Thus, it serves to protect consumers by enabling market transparency regarding the origins of the goods and services. 1088 Furthermore, it minimizes the consumer search cost and reduces the risk of consumer confusion regarding the provider of the goods and services available in the market. 1089

Although the consumer interest is at the center of trademark law, the actual beneficiaries of trademark law are the market actors who engage in trade and offer goods and services to the marketplace. 1090 Indeed, trademark law vests the exclusive right to use the registered mark in business transactions and the right to prevent third parties from using identical or similar marks for identical and similar goods and services for which the trademark is registered. 1091

Though they are closely related with corporations and the marketplace, rather than the advancement of culture and science; 1092 trademarks have the potential and the power to convey a message, to alter the societal realities, to fabricate even racially-charged, white-washed, or falsified - social meanings and imagery, and to integrate such social constructs and structures into the fabric of the society." 1093 In this sense, just like the disentanglement of idea from expression within the copyright context, trademark law is also not concerned with whether a mark is culturally (in)sensitive, inappropriate, or historically wrong.

As rightfully articulated by Rosemary J. Coombe, the information societies are constantly introduced to goods and services that bear trademarks, which comprise of 'commodified forms of cultural representations.' 1094 Even though these trademarks may not have any 'organic' meaning that have been collectively constructed by the society over time, these signs and symbols enter the common imagery of the society via corporations’“meaning-making [or ‘cultural recoding' practices] (...) [aimed at adapting] signs, text, and images to their own agenda.' 1095 In respect to this, Ann Bartow explains that naming practices, including the branding of goods and services with trademarks, communicate information about a certain society and its historical, cultural, and political heritage. 1096 In this sense, Bartow also attributes a cultural dimension to trademarks and adds that trademarks ‘affect public perceptions and permeate the collective public conscience.' 1097

Nevertheless, just like copyright law, trademark law does not operate in a socio-historical and political vacuum.1 1098 As opposed to its face-neutral legal framework, trademark law has been under the influence of the general public discourse as well as its racial classifications; hence, it has historically promoted racially-charged information and racial hierarchies. 1099 In fact, Bartow claims that the current naming practices, including the legal norms and principles on trademarks, often privilege the interests of ‘the wealthy, male, and [W]hite.'

The racially-charged ‘meaning-making' practices of corporations, as ratified and legalized by the Western-centric trademark regimes, have a couple of major and intertwined consequences, especially on the racialized cultural identities of historically marginalized non-Western groups: First, these practices, at their 'best', pave the way to phenomena known as cultural imperialism and cultural (mis)appropriation. Cultural imperialism refers to ‘the threat of assimilation or the loss of cultural distinctiveness,' 1101 due to the (mis)use or mis(appropriation) of mainly the non- Western or indigenous cultures. 1102 As to cultural (mis)appropriation, it refers to the phenomenon of using a distinct cultural element out of its original context, hence, causing the distortion of its authentic meaning, as well as the exploitation of such cultural elements without free, prior, informed consent of its traditional holders. 1103 In order to identify the problematic aspects of this phenomenon, Coombe refers to the 'colonial imaginary.'1104 According to Coombe, cultural (mis)appropriation stems from the lingering colonial mindset that denies, especially, indigenous peoples the status of being currently existing human beings who can narrate their own reality and engage in a dialogue with the dominant groups in the society. 1105 Furthermore, such a racial thinking reduces them to archetypes or ‘mythical' beings who stem from the imagination of the society, authors, creators, or trademark owners.

Second, the existing trademark regime that is built upon the Western commercial relations and interests can further invest in the colonial and racial imagery, by providing the legal basis for the registration of racial stereotypes, derogatory marks, and even racial slurs as trademarks. 1107 In fact, the IP domain holds many notorious examples of racially insensitive trademarks that were registered and that are still in use. These trademarks include but not limited to the following: The 'Aunt Jemima' and 'Uncle Ben' words and images, which evoke the racial and stereotypical house servants — or, slaves; the inherently racist trademarks, such as 'Redskins' and 'N***** Hair'; the 'Crazy Horse' trademark, which consists of the name of a Native-American chieftain and inappropriately attributes his name to alcoholic beverages, hence, dishonors the Chief and his legacy, 1108

Regardless of the message that trademarks carry and circulate, the legal protection bestowed upon such corporate commodities interact with the public space and the common knowledge of the society in the following ways: On the one hand, just like copyright law, trademark law gives primacy to the economic interests of the Western (European) market actors over the identity and cultural survival, predominantly, of non-Western and indigenous communities.1109 It not only 'justifies' the meaning imputed within the trademark, but also commodifies such cultural insignia and monopolizes its dissemination by the corporation that ‘owns' the trademark. 1110 On the other hand, the registration of the mark and the acquisition of exclusive IPRs over the trademark fixates and 'freezes' the (negative) cultural connotations attached to the relevant insignia, whilst constantly feeding the common imager with such racial information.1111

As a consequence, these racial practices within the trademark domain lead to what Madhavi Sunder calls the struggles over discursive power – the right to create and control cultural meaning.’1112 In this sense, it can be argued the global IP diplomacy has become a new venue for the historically subordinated groups, including racial and ethnic minorities and indigenous peoples, to claim exclusive legal rights to control their cultural representation and public image, and to prevent their pejorative or falsified images portrayed by third parties, including Western (European) intellectual creators and media conglomerates. 1113

To summarize and conclude, the contemporary global IP frameworks are products of the diplomatic relations established amongst Western (European) States, which were drafted and negotiated in an atmosphere of racial thinking - and in the shadow of colonialism. 1114 Thus, both copyright and trademark laws hold the potential to further entrench the colonial mindset, to consolidate the presumption of the Western (European) ‘superiority', and to engage in racially- charged practices. In fact, IP norms and standards, on the one hand, locate the Western (European) culture, values, and ideals at the pinnacle of a racialized cultural hierarchy, and they reflect the Western (European) readings of authorship and creativity. On the other hand, the same IP regime places non-Western cultures and the non-Western perceptions of creativity at a subordinate level in this hierarchical ladder.

The dominance of the Western (European) political and market actors in the IP realm had (and continues to have) two major implications on the non-Western actors of IP: First, these racialized cultural hierarchies, and the Western (European) cultural assumptions fed into IP law resulted in the 'invention' of two categories, in which non-Western modes of creativity and creations are clustered: Folklore and TK.

Second, the Western (European) assumptions of the 'worth-to-be legally-protected' intellectual works have marginalized the non-Western readings of creativity and excluded non- Western modes of creations from the scope of ‘global' IP law.1115 As a result, both folklore and TK have been largely placed in the (Western European) public domain, where they are vulnerable to being (mis)used, (mis)appropriated, and commodified by anyone – and, once again, by virtue of (the Western-centric assumptions interwoven into) IP law.1116