Commercial Speech conference: Ann Bartow

Commercial Speech in an Age of Emerging Technology and Corporate Scandal, sposnored by the South Carolina Law Review, the USC School of Law and the USC School of Journalism and Mass Communication

Ann Bartow bravely stepped in for Alfred Yen, who was prevented from attending by weather-related delays.

Ann Bartow, South Carolina, Trademarks of Privilege: Naming Rights and the Physical Public Domain. Trademark law is about the power of words, getting lumped in with IP like patent and copyright, but it’s different – it is directed at the commercial power of words. We don’t need to incentivize the use of words as marks; you need to earn the right to do so in ways other than by creating or innovating.

Here, her topic is naming arrangements for public buildings. She’s not against philanthropy, but she’s not a fan of quid pro quo naming where the amount of the required gift is mysterious, flexible and subject to gaming. More related to TM, she objects to the failure of corporate owners to admit that “naming” is a non-TM use of marks, and can actually look like intentional deception of consumers. Enron Park is now Minute Maid Park; Minute Maid does not own the park, but just gave some money. It’s an ad, but it’s not a TM, educating consumers about the source of a good or service. Finally, she objects to honorific naming that free-rides on public facilities and public good will, for example public buildings named for current politicians, especially if the criteria for naming aren’t publicly articulated or accessible.

Why does Colonial Life get its name on the Gamecocks’ stadium? It is not clear what information the name is supposed to convey to consumers. Did Colonial submit the biggest bid? Does it participate in managing the stadium? Who knows?

Likewise, South Carolina has been Thurmondized – what exactly are the mechanisms of naming honors? Is Strom Thurmond a trademark, and if so what does it signify? South Carolina-ness? On occasion, politicians have renamed things – like Clark Hill Lake, SC – in Thurmond’s honor, without consulting locals.

Street names are also named by the government, but become part of one’s personal identity. In a way, they constitute compelled speech, especially if the government then changes the name on you. The standards for street naming are unclear and usually undemocratic, disproportionately given to politically connected white males. There are political tensions over the advisability and nature of the naming “honor” (e.g. Martin Luther King, Cesar Chavez, Rosa Parks, which are names that signal what kind of people live in that area; wealthy people resist renaming their streets in honor of Martin Luther King because it will lower their property values).

What’s the effect of naming? Visibility, endorsement, reward for service, elevates standing of the entire family. Naming has historical impact in communicating to future generations who we thought was important. In South Carolina, the Civil War is built into the public domain. Students in at least 20 districts attend public schools named after Robert E. Lee, whereas heroism in WWI and WWII has attracted less public memorialization.

Trademark law is premised on the commodification of associative value and social meaning. Bartow’s work asks us to interrogate the mechanisms and rationales for this process.