Sonia K. Katyal - UCLA Law Review

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suggested that libelous statements should be afforded “low” First Amendment
value only when they constitute false statements of fact, casting some doubt
on Beauharnais. 137
Yet aside from measuring economic harm, trademark law has no way to
measure the role of expressive harms to third parties. It may be said that
stereotypical trademarks perpetuate a variant of what Lior Strahilivetz has
called “misperception externalities”—unflattering stereotypes about a particular
group. 138
Here, the social costs may take the form of emotional harm, reputational
damage, or misinformation about a certain group or person. Early cases
had considered the definition of disparagement of a commercial entity through
the eyes of a reasonable person, ostensibly drawn from the general public. 139
More recently, however, courts have begun to focus more intensely on the point
of view of the targeted group, noting that “only the perceptions of those referred
to, identified, or implicated in some recognizable manner by the involved mark
are relevant.” 140
While there are a few cases discussing disparagement in the context of
section 2(a), the most prominent of these stems from a period in American
advertising that relied heavily on the use of Native American images as
trademarks in the commercial marketplace, particularly as team mascots. 141
In
the early 1930s, an American professional football team, the Boston Redskins,
not be tested by the clear and present danger standard. In justifying this conclusion, Justice
Frankfurter relied primarily on Chaplinsky’s characterization of ‘libelous’ utterances as ‘unprotected’ speech.”
GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 250 (1999) (citing Chaplinsky v. New Hampshire,
315 U.S. 568 (1942)).
137. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (“[L]ibel can claim no talismanic
immunity from constitutional limitations.”); Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)
(same); Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (same); Collin v. Smith, 578 F.2d 1197, 1204
(7th Cir. 1978) (expressing doubt as to whether Beauharnais is still good law); STONE, supra note 136, at
250 (citing Milkovich v. Loraine Journal Co., 497 U.S. 1 (1990) (holding that only false statements of
fact deserve a lower constitutional status)).
138. Lior Jacob Strahilevitz, Information Asymmetries and the Rights to Exclude, 104 MICH. L. REV.
185, 185–86 (2006).
139. See Jack Achiezer Guggenheim, Renaming the Redskins (and the Florida State Seminoles?): The
Trademark Registration Decision and Alternative Remedies, 27 FLA. ST. U.L. REV. 287, 297 (1999) (citing
Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1739–40 (T.T.A.B. 1999); Greyhound Corp. v. Both
Worlds Inc., 6 U.S.P.Q.2d 1635 (T.T.A.B. 1988)).
140. In re Hines, 31 U.S.P.Q.2d 1685, 1688 (T.T.A.B. 1994).
141. For more information on how the commercial marketplace has appropriated Native American
images and culture, see ROBERT F. BERKHOFER, JR., THE WHITE MAN’S INDIAN: IMAGES OF THE
AMERICAN INDIAN FROM COLUMBUS TO THE PRESENT (1978); PHILIP DELORIA, PLAYING INDIAN
(1999); DRESSING IN FEATHERS: THE CONSTRUCTION OF THE INDIAN IN AMERICAN POPULAR
CULTURE (S. Elizabeth Bird ed., 1996); SELLING THE INDIAN: COMMERCIALIZING & APPROPRIATING
AMERICAN INDIAN CULTURES (Carter Jones Meyer & Diana Royer eds., 2001); and Angela R. Riley,
“Straight Stealing”: Towards an Indigenous System of Cultural Property Protection, 80 WASH. L. REV. 69,
80 (2005).