Signification of “ancillary” based persona’s produces a capacity that “symbolizes” subjects as invisible personalities for “devices” to replace blackness with universal confusion.

Initially, we must ask whether MarCus really stands a chance of registering himself as a human trademark under intellectual property law as courts currently interpret it. MarCus's trademark application describes a persona consisting of both superficial characteristics (e.g., name, image, voice) and more intrinsic attributes of identity (e.g., independence, amorality, "cool"). Not only do some characteristics defy precision, but they continue to raise context-dependent questions to which the answers remain largely subjective.24 That may not be fatal, however, because intellectual property law often creates apparent "certainties" from perspective-based contingencies. Therefore, this part analyzes MarCus's quest in the legal and scholarly context, beginning with the applicable threshold requirements for trademark registration by the PTO and the tempting, but less desirable, route of acquiring aggressive rights of publicity instead. As we shall see, those routes have coalesced as courts have allowed individuals to assert similar claims to commercial self-ownership under section 43(a) of the Lanham Act and state right of publicity laws. After delineating that case law coalescence, I offer some of the salient scholarly criticism of such expansive protection as it relates to general trademark rationales and to the particular complications raised by MarCus's case. Finally, I situate the entire discussion within the larger, enabling context of what Jean Baudrillard called "hyperreality."

A. Registration and Validity

MarCus's legal approach to status takes a direct route to PTO registration, rather than pursuing a more cumulative strategy of gaining recognized rights around more ancillary uses of his identity in commerce.2 In fact, he hopes that the application process will itself engender legal opposition to his mark so that he can maximize publicity of his successful mark and its value in the marketplace. 6 However, the 27 PTO application is rather straightforward. The narrow legal inquiry for the trademark examining attorney is whether MarCus's persona may be perceived as a distinctive signifier of a commercial source (advertising services) to ordinary consumers. The question may be divided into two parts: subject matter protection under the Lanham Act, and validity (or distinctiveness). There is no explicit subject matter prohibition on the trademark registration of a symbol which happens to be a human being. Under section 43(a) of the Lanham Act, a trademark may consist of any "name, symbol, device or combination thereof" capable of identifying the source of a product or service in interstate commerce. However, the Act's statutory language has not been a bar to the recent registrations of color,31 sound,32 or smell? none of which falls within even a liberal reading of the Act's categories. 34 Colors, sounds, and smells simply are not words, names, symbols, or devices in any traditional sense, though the interpretations that have permitted their registration - like groundbreaking trade dress decisions before them - recognize that the essence of a trademark is its source-identifying capacity (i.e., its inherent, or secondary, ability to function as a commercial signifier). When the Supreme Court decided that color alone could function as a trademark, it spent little time on any plain-language statutory bar.

Both the language of the Act and the basic underlying principles of trademark law would seem to include color within the universe of things that can qualify as a trademark. The language of the Lanham Act describes that universe in the broadest of terms. It says that trademarks "include any word, name, symbol, or device, or any combination thereof." § 1127. Since human beings might use as a "symbol" or "device" almost anything at all that is capable of carrying meaning, this language, read literally, is not restrictive.

Assuming MarCus overcomes the subject matter threshold, his primary requirement for registration would be to demonstrate that his mark had sufficient distinctiveness; that is, that the mark is readily identifiable to an appreciable segment of the public as a symbol of source. Distinctiveness analysis, sometimes referred to as a mark's validity, tends (sometimes awkwardly) to proceed according to a fivepoint continuum first announced by Judge Friendly in Abercrombie & Fitch v. Hunting World, Inc. Judge Friendly's factors test a mark's distinctiveness by considering whether it should be characterized as "generic," for which it receives no federal protection; "descriptive," for which it only receives protection upon a showing that it has also acquired secondary meaning in the minds of the relevant public; 37 "suggestive"; "arbitrary"; or "fanciful." The latter three categories of marks nearly always receive protection. Under the Abercrombie & Fitch test, MarCus's persona would likely be sufficiently distinctive. MarCus's persona cannot be considered generic, because in the context of the market, it expresses a uniqueness of personality that cannot be said for all humans. To call it descriptive would also be inaccurate because his personhood does not instantly describe his unique advertising services. Consumers cannot perceive the precise function of MarCus, LLP, marketing services by MarCus's appearance, voice, or other specific indicia of his persona. At the least, MarCus's mark in himself suggests his peculiar advertising methods and effects. But, while a suggestive mark like Coppertone suggests what the consumer may experience by using the product, MarCus's services may not be so readily identifiable. Nor is the MarCus mark fairly called fanciful in the sense that it is entirely made up. He is no more "made up" or self-invented than any other human being. What is most distinctive about MarCus as a mark is that he has sought arbitrarily to equate his personality with a signifier of commercial source and, as far as the consuming public is concerned, nothing else. Therefore, the MarCus mark is IFrobably arbitrary and presumptively entitled to a finding of validity.

However, these are merely the technical requirements that MarCus must overcome. For the sake of the hypothetical, we may assume he has already done so. The more interesting analysis concerns developments in both Lanham Act case law and the right of publicity, which over the past two decades have laid the foundation for legal claims to selfcommodification.

B. The Lanham Act § 43(a) and Protection of Persona

1. The Lanham Act § 43(a)

Trademark registration of one's persona is only the most explicit way to own a federally protected identity. The process of conferring rights in unregistered commercial marks has been underway for years in the guise of section 43(a) false endorsement and false advertising claims brought by celebrities (often accompanied by strong right of publicity claims).39 To make out a prima facie case, a plaintiff must demonstrate that her identity - name, likeness, voice, identity, or "symbol" - was used in affiliation, connection, or association with the defendant's goods or services or as to plaintiff's participation in the origin, sponsorship, or approval of the defendant's goods or services without plaintiff's consent and in a manner likely to confuse or deceive consumers. 4 0 Several cases have established that section 43(a) claims can function like a federal right of publicity.4 ' However, it may have been the Ninth Circuit's opinion in a voice misappropriation case that clarified how a broad view of the term "symbol" in the Act could make a right of publicity claim nearly equal to that of a trademark.42 To identify the key dynamics of trademark rights expansion, I examine two other cases - both of which incidentally involve black male celebrities - which demonstrate how such a move continues to facilitate the commodification of identity. For the purpose of supporting MarCus's case, I follow that analysis with less obvious observations about trademark's process of authorization. In the first decision, Kareem Abdul-Jabbar v. General Motors,43 the Ninth Circuit relied on its opinion in Waits v. Frito-Lay, Inc.4 A to go beyond the unfair competition roots of section 43(a)'s false endorsement language and to declare (somewhat hesitantly) the functional equivalent of a human trademark. Abdul-Jabbar filed suit against GMC for using his former name, Lew Alcindor, in a car commercial which ran during the televised 1993 NCAA basketball tournament.45 Years before, when Abdul-Jabbar played college basketball, he used his given name, and GMC's ad made specific mention of that fact, including recitation of his championship accomplishments and comparing Jabbar's stature to that of the Oldsmobile 88. 46 The court began analyzing the Lanham Act false endorsement claim by stating that "[s]ection 43(a) [as amended in 1988] ... expressly prohibits, inter alia, the use of any symbol or device which is likely to deceive consumers as to the association, sponsorship, or approval of goods or services by another person." 47 According to the court, if it can be deemed a symbol and has the capacity to confuse or deceive consumers, then it may be treated as a trademark.4 "Symbol" encompasses "other uniquely distinguishing characteristics," and, therefore, may be conceivably the celebrity's name alone or other traits associated with his identity. Here, GMC had used more than AbdulJabbar's given name. It also conveyed specific facts about his career that amounted to enough indicia of identity to cause consumer confusion.49 But, is that sufficient analysis to conclude that Abdul-Jabbar is a human trademark? Perhaps not, at least as the court leaves it; but he can function as one."'

In a second, arguably more explicit, attempt to gain trademark protection for a persona, the Seventh Circuit majority looked less favorably on golfer Tiger Woods' (Earl "Tiger" Woods, or "ETW") claims.5 ETW sued Rick Rush, the self-styled "America's Sports Artist," and his art publisher for using Woods' image in a painting called The Masters of Augusta and his name, a registered trademark, in retail materials." According to the facts, Woods' image was actually portrayed in three different poses in the piece, which also included the likenesses of several other golfing greats in a scene commemorating Woods' historic victory at the Masters Tournament in 1997.53 ETW offered several theories of liability, suing under the Lanham Act for trademark infringement, false advertising, and dilution as well as asserting his Ohio common-law right of publicity. The majority denied ETW relief on all grounds. However, its characterization of ETW's trademark claims is noteworthy.

Here, ETW claims protection under the Lanham Act for any and all images of Tiger Woods. This is an untenable claim. ETW asks us, in effect, to constitute Woods himself as a walking, talking trademark. Images and likenesses of Woods are not protectable as a trademark because they do not perform the trademark function of designation. They do not distinguish and identify the source of goods. They cannot function as a trademark because there are undoubtedly thousands of images and likenesses of Woods taken by countless photographers, and drawn, sketched, or painted by numerous artists, which have been published in many forms of media, and sold and distributed throughout the world.55

This probably states too much, and the majority may have been displaying some underlying antipathy for the nature of the claim. In any event, the court held that ETW did not hold trademark rights in all 56 images and likenesses of Woods. In a spirited dissent, at least one justice argued that Woods' image may function as a trademark, provided, for example, that consumers identified him in a specific and familiar pose appropriated by the artist.5 7 The case demonstrates the lack of clarity as to whether the Lanham Act protects human personas "like" a trademark or if it is inevitable that the Act will protect human personas "as" trademarks .