Jon J. Lee
91 Geo. Wash. L. Rev. 932
As companies have come to terms with the fact that their brand names and imagery have connections to America’s racist history, they have publicly announced their commitments to shed their ignominious trademarks. But, unlike a physical monument, a trademark cannot be destroyed or removed. Under the prevailing doctrine, abandoned trademarks return to the public domain, free for another company to claim and use—even if it may capitalize on the mark’s recognition as a symbol of oppression. This puts companies that wish to sever their ties with their racist trademarks in an intractable situation: either they make good on their commitments and risk losing their ability to prevent others from adopting the marks, or they try to use the marks or their vestiges in limited ways that may avoid abandonment. This dilemma is heightened because the abandonment doctrine has been applied inconsistently by courts, precisely because some judges wish to avoid the dramatic consequences that result from deeming a trademark abandoned.
This Article makes three contributions to the discourses on trademark law and race and the law, revealing how the law has erected barriers to companies that wish to engage in efforts to ameliorate the harm caused by their use of racist trademarks. First, this Article explains how trademark law has contributed to the proliferation of harmful racial and ethnic stereotypes and identifies the limits on the tools that can be employed to curb the use of such symbols. Second, this Article comprehensively describes the trademark abandonment doctrine, bringing to light the distinctions that courts have tacitly drawn between express and implied abandonment, the flaws in the current doctrine, and the perverse incentives it creates for companies that wish to shed their racist trademarks. Third, this Article illustrates how trademark law and systems can be reformed to promote antiracist efforts while simultaneously rectifying problems that affect a broader group of trademark holders.
