The plan generates a colonial scopic regime that turns people of color into commodities for consumption.

Trademark law, which existed at only a state level until the mid-1900s,139 both amplified and quelled national desires and anxieties associated with race, national identity, citizenship, and economic prosperity. Passed in 1946, the nation’s first federal trademark statute, the Lanham Act,140 played a central role in perpetuating and reinforcing the whiteness of U.S. citizenship as well as racial hierarchies from the Antebellum Era that Emancipation disrupted.141 Yet unlike copyright and patent law, trademark law did not explicitly exclude certain groups from protection. Instead, it produced a legal framework through which racial hierarchies could be normalized and managed visually, in consumer spaces.

Along with a precipitous rise in U.S. trademark registrations in the 1900s, “product consciousness had become so crucial a part of national history and popular self-identity that the public’s relation to business took on a patriotic value.”142 Rosemary Coombe, citing Michael Warner, notes that trademarks are “constitutive parts of a public sphere—constructing a common discourse to bind the subject to the nation and to its markets,”143 while Richard Schur comments that “[c]irculation of racial imagery is not simply an accidental effect of the current trademark system but a fundamental element of its logic.”144

America’s trademarks effectively and affectively traded on nostalgia and desire for particular racial orders, thereby simultaneously managing white fears about the end of slavery and offering reassurances about racial futures. They did so by structurally and doctrinally affirming particular subject positions, specifically those of the white, heterosexual male. Trademark law developed around a largely white and male consumer gaze that, through legal doctrine and images, objectified and commodified women and people of color, often through the invocation of familiar racial scripts. Because the consumer gaze operated both legally and culturally, it is traceable through legal cases and trademarks themselves, as both explicitly and implicitly reified the consumer authority of white heterosexual masculinity.

Trademarks entrenched a flexible but nonetheless consistent triangular relationship among individual, product, and nation, which played an important role in the construction of a sentimental and anxious national identity in two important respects.145 First, they represented race and racialized labor in ways that offered a soothing balm for whites after the national trauma of the Civil War. Exaggerated, sexualized, and mocking trademarks from Little Black Sambo to Chiquita Banana promoted the ideas that people of color were nonpersons, who were incapable of producing valuable knowledge, best suited for unskilled and service labor, and were not full and participating members of the national body politic. These representations built upon familiar racial scripts of people of color as unintelligent, lazy, incapable, devious, and primitive. Perhaps more importantly, these representational practices demarcated white Americans—with white, heterosexual men having particular authority—as producers and consumers of people of color instead of as persons existing in equal relationality with them. The white male consumer gaze dictated the language and trajectories of legal doctrine and specified which visual images had value.

Second, these ideas and values came to be embedded within trademark doctrine, by empowering some to consume and marking others for consumption. That distinction, of course, humanized some individuals and dehumanized others. The Doctrine of Consumer Confusion, the test for determining whether and when the “reasonable consumer”146 is duped by a “confusingly similar”147 trademark, embraced racial scripts and racial feelings that prevailed at the time. Defined by an implicit male consumer gaze grounded in the structural realities of a white male judiciary and white male property holders, consumer confusion naturalized white masculinity as the default legal standard for seeing and judging trademark infringement.148 In doing so, the Doctrine of Consumer Confusion created a form of particularly American emotional racial capitalism in which racial identity, citizenship, and personhood collided in the marketplace, in the specific forms of trademarks and trademark doctrine.

The pervasive use of derogatory images of people of color as trademarks created a “scopic regime,”149 an unspoken but accepted visual order of things, which reflected white, male, settler colonialist understandings of the world. In Judith Butler’s definition of the term, “[t]he visual field is not neutral to the question of race; it is itself a racial formation.”150 Seeing unfolds within a set of ideological constraints, which limit the very possibilities of radical seeing. Trademark’s racialized scopic regime resulted from the creation and reproduction of a white male consumer gaze,151 that was produced by and reproduced white men as consumers. In a nation in which white men held most positions of power and most economic assets—including property rights, lawmaking authority, permission to govern, and industrial production—trademarks visually reflected and constituted their understandings of the world, even when women and people of color were doing the producing/consuming.

Put differently, a scopic regime shaped by the male consumer gaze in the late 1800s and early 1900s was one that necessarily objectified people of color and presented them as commodified trophies of colonial conquest. Conceptually speaking, those individuals who were afforded political, cultural, and economic authority made the world in their image, as a means of retaining power.152 Moreover, they created conditions that produced more white male consumers like themselves, who validated the racial hierarchies that trademarks imagined in a self-reproducing cycle.

Returning to Berlant, trademarks identified communities of belonging and non-belonging, particularly by unifying whites around their objectification and consumption of people of color. (White) consumers were implicitly joined together by the joy of purchasing commodified forms of Otherness, of “eating the Other.”153 Imagistic representations of racial scripts transformed racial common sense into visual vernacular while simultaneously calling upon (white) American citizens to come together to form strong and resilient capitalist markets. These images, in turn, normalized the feelings of antipathy toward non-white citizens that continued to circulate. While some racially exaggerated, sexualized, and mocking images of white persons—for instance, the Fighting Irish—certainly exist, they are relatively more rare and considerably less damaging than analogous images of people of color.154 For a young nation articulating its racial hierarchies, understandings of labor, and economic investments, demeaning images of people of color served as potent vehicles for entrenching a range of racial scripts and racial feelings as well as shaping understandings of nation and citizenship. Indeed, they ensured that whiteness and power were intertwined.