Sonia K. Katyal - UCLA Law Review

1606 57 UCLA LAW REVIEW 1601 (2010)
In other words, trademarks, owing to their expressive and economic dimensions,
embody a particular kind of conflict that the government has failed to
grapple with. Since trademarks inhabit a multiplicity of meanings, they can
operate as devices of owned property, and at other times, they can also operate as
devices of expression and culture. The tension between these facets produces a
nearly irreconcilable incompatibility between the marketplaces of goods and of
ideas. The Redskins and the Dykes on Bikes cases show how trademark law is
often the terrain on which these conflicts unfold, leaving the optimal role of state
regulation largely undertheorized.
Indeed, the legal standards for determining disparaging and scandalous
content only serve to highlight, rather than resolve, these nearly irreconcilable
intersections between social meaning and economic value in trademark law.
The end result of this bipolarity also means that antidiscrimination concerns are
usually invisibilized in favor of a resolution that favors either freedom of culture
and speech, on one hand, or property, on the other. As a result, the law leaves us
with a curious mismatch—though trademark law governs speech and expression,
our case law and theory is correspondingly thin in providing us with guiding principles
over how to reconcile these principles with the function of trademarks
as property.
The purpose of this Article is to reconcile these polarities of economic
value and social meaning within trademark law by considering the state’s role in
resolving these tensions. What we need is a theory that reconciles the interaction
of trademark law’s commercial functions with its expressive connotations, a
way to embrace the state’s role in preserving the economic value of brand equity
while simultaneously recognizing the potential expressive externalities that may
flow from commodifying certain marks. I argue that, unlike other areas of law,
trademark law’s section 2(a) provisions cannot be perfectly analogized to our case
law on either First Amendment, antidiscrimination, or other areas of intellectual
property: What it represents, I argue, is something wholly unique, and something
far more instructive to these areas than the current literature suggests.
For the past twenty years, one of the crucial tools that we have used in
grappling with the complexity of culture and discrimination has been the theory
of intersectionality, which has provided us with a vantage point from which to
theorize some responses. 13
Intersectionality’s main gift has been forcing the
law to recognize the multiplicity of different identities that circulate within a
particular embodiment, and to take into account the unique intersection of
overlapping categories of identity. To date, however, we think of intersectionality
in terms of categories of human identity along an axis of categories of
13. For more on the concept of intersectionality, see Part II, infra, and infra notes 175–182.