Innovation Law and Theory Workshop
Ann Bartow
Associate Professor of Law
University of South Carolina School of Law
The True Colors of Trademark Law: Aesthetic Depletion and the Distortion of Social Meaning
Date: Tuesday, March 25, 2008
Time: 12:30 p.m. – 2:00 p.m.
Place: Solarium FA2, Falconer Hall, 84 Queen’s Park
In the United States, trademark law can be used to monopolistically harness the aesthetic appeal or preexisting social meaning of a color following the U.S. Supreme Court decision in Qualitex that colors alone could constitute protectable trademarks. The primary doctrinal arguments against recognizing color alone trademarks include aesthetic functionality, the related concept of communicative functionality, uncertainly about scope, and color exhaustion. The second part of this paper posits that the theoretical case for color alone marks is broadly destabilized by an analysis of the ways colors and commodities actually intersect in commerce. Take for instance the color pink. One powerful meaning of pink is related to gender. Products and packaging are pink to telegraph gendered attributes of targeted consumers or of the product itself: the object for sale is for women, or women are the objects for sale. Finally, this paper asserts that the pervasive gender specific deployment of the color pink in commerce raises broader questions about the role of trademark driven aspects of consumer culture in maintaining the second class status of women.
Professor Ann Bartow is a graduate of Cornell University and the University of Pennsylvania Law School. She began her teaching career as an Honorable Abraham L. Freedman Teaching Fellow at Temple University School of Law, where she also received an LL.M. in Legal Education. Prior to joining the University of South Carolina School of Law in the Fall of 2000, she held visiting appointments at the University of Dayton School of Law and the University of Idaho College of Law. Her scholarship primarily focuses on the intersection between intellectual property laws and public policy concerns.
Please RSVP to centre.ilp@utoronto.ca or 416-978-3724
A light lunch will be provided.
www.innovationlaw.org
Sponsored by the Microsoft Law and Information Society Project
