Legal fictions

Richard Schur

pp. 191-207

in: Lovalerie King, Richard Schur (eds), African American culture and legal discourse, Basingstoke, Palgrave Macmillan, 2009

Abstract

Culture, whether as ideology or as everyday ritual, is where power inequalities manifest themselves in the behavior and values of ordinary people. This chapter examines how trademark law has enabled the ongoing circulation of racialized images and how its doctrinal building blocks offer striking analogies for understanding how race has operated and continues to function. Circulation of racial imagery is not simply an accidental effect of the current trademark system but a fundamental element of its logic. The entire purpose of trademarks is to rely on catchy slogans, fanciful phrases, and distinctive imagery to serve as proxies for authenticity or quality claims about product and corporate identities. Sometimes, these marks are truly arbitrary without any literal or cultural referent. Other times, marks build on existing but legally unrecognized cultural narratives or metaphors. In other words, trademark law is a key site within legal discourse where stereotypes and assumptions can get transformed into operative and potentially valuable fictions.¹ This chapter invokes I. Bennett Capers's strategy of "reading back" and "reading black" to suggest how much trademark law can teach us, perhaps unintentionally, about the function and operation of race in contemporary life.² This approach reveals that the concept of race, as a social fiction that identifies a person, is a key, albeit unspoken, feature of trademark discourse.³ The slippage between racial and trademark discourse can also be found in unexpected places in American culture, including major civil rights cases such as Plessy v. Ferguson (1896) and Gratz v. Bollinger (2003).⁴

Cited authors

Bennett Capers I.