Stigmatising Trade Marks in the Public Sphere: An Analysis of the Law, Theory and Practice

Abstract

As Habermas has argued, the modern public sphere plays a crucial role in democratic societies. Stigmatising trade marks, by propagating damaging stereotypes, harm marginalised groups and shrink their capacity to participate in the public sphere’s democratic discourse. From a marginalised group’s vantage point, registered stigmatising trade marks are particularly harmful as they reflect institutionalised prejudice. Further, as registered marks, they enjoy stronger legal protection than their unregistered equivalents, which imposes onerous communicative hurdles that must be overcome before marginalised groups can truly participate in public debate on an equal footing as non-referenced groups. The Australian and British Trade Marks Registers examined in this thesis demonstrate that traders are unreliable in preventing this harm, and that Trade Marks Offices, mainly through obliviousness and a pro-registration bias in trade mark registration systems, have fundamentally failed to address, and have even contributed to these problems. The promotion of an open and inclusive public sphere enabling equal participation by all citizens in public, social and democratic discourse, demands that we do something about these problems. To address the harms of stigmatising marks in the context of a trade marks registration system, root and branch law reform is required. We must adopt a proactive, prophylactic approach: this includes a clearer legislative framework and legislative purpose, adopting a new prohibition on registering ‘offensive’ marks, securing input from marginalised groups or their representatives in the trade marks registration process for marks that reference them, reversing the presumption of registrability, and even revoking registered stigmatising trade marks.