Ann Bartow: Deere case involves the infantilization -- gaying up -- of a masculine icon. Does the analysis work a different way when the brand identity is masculine?
Farley: She wants to distinguish between “brand” generally – brands that qualify for dilution protection – and individual brands. Main proponents of dilution protection represent “masculine” brands, but are still using the metaphor to Congress that their brands are vulnerable to predation. The metaphor can be flipped in individual cases when a masculine brand is feminized by a competitor. (I have a collection of Marlboro parodies; almost none of them involve feminization or sexualization, except for the Brokeback Mountain one.)
Burk: The right of publicity also might create similar issues – slash fiction, etc.
Diane Zimmerman: Defamation can be further unpacked – presumed damages was a special doctrine of slander, not defamation generally. There were three exceptions where you can presume damages – the idea was that these were especially serious harms and we didn’t want to disfavor slander as we did in the ordinary case.
Farley: Sure, but women who could prove they lost marriage proposals could recover without using the exception. It’s women who lost dinner invitations who had to rely on the presumption.
My comment: Perhaps ironic that Farley now uses the comparison with defamation of women to say that this isn’t really a big deal. Feminist critiques of tort law, as Burk mentioned, have emphasized recognition of relational, non-market harms as legitimate.
Farley: Brands are putting themselves in situations that should weaken them, but aren’t – they’re spreading to many products, changing over time. If dilution law is supposed to fix a meaning and keep it in control, TM owners’ activities are deliberately weakening that control but asking for legal protection so no one else can do it.
Me: What’s the difference between that and “an unchaste women can’t be raped”?
Farley: For brands, that’s not justified. (I entirely agree. That we should take account of non-market harms and harms that have been denigrated because they’ve primarily been suffered by women does not mean that we should take account of every possible perceived harm. Brands aren’t women, because they’re not people. They have no moral claim to relational protections. I shouldn’t break a person’s leg; I have no such obligation to a chair.)
Radin: Capture of rhetoric – tarnishment, piracy, property – is a way to win a battle through labels. The gendered way of characterizing brands is a form of rhetorical capture. Also, law and economics analysis can produce similar results in a very masculinized way.
Farley: Dilution doesn’t pull any heartstrings; there’s been a lot less judicial resistance to tarnishment, which has that rhetorical capture. A lot of successful blurring cases involve misappropriation, but we didn’t adopt that characterization of dilution in law. We’ve imported it a bit from abroad.
Josh Sarnoff: Can we think about incentives/patents as quid pro quo in relation to Burk’s and Silbey’s papers?
Silbey: In the case she discussed, the attorneys were actually accused of malpractice from putting the wrong people on the patent – distorting the proper incentives.
Separately, one thing that drives Silbey crazy about tarnishment cases is that judges find it so obvious what’s tarnishing about Debbie Does Dallas when the Dallas Cheerleaders are already heavily sexualized/gendered. The fact that they find it so obvious shows gender ideology at work, and we should work to force them to justify themselves.
Burk: The legitimacy of commodifying some kinds of sex, but not other kinds – you can’t sell sex, but you can sell Cheerleaders posters. Victor’s Little Secret is bad, but Victoria’s Secret Angels are fine.
Farley: Because there’s no foundation for dilution, it invites that sort of analysis.
Silbey: There is a there there – ideologies of gender and power. From the dominant perspective, Victor’s Little Secret is worse than Victoria’s Secret Angels. We need to make our decisionmakers admit what they find acceptable and what they don’t.
Q: Women students have said: they shop at VS all the time, and they see VS’s messages about women and sex as very different from the messages sent by Victor’s Little Secret.
Q: Rape law – reputation shouldn’t be part of it, but it is the case that “good” women are protected where “bad” ones aren’t. One kind of woman needs to be protected, and therefore another kind needs to be abandoned.
Farley: Dilution works by protecting a brand whatever she’s wearing. (And again, that makes me think better of dilution. But it’s the metaphor – brand as person, specifically woman – that is generating that sympathy, which is its evil power.)
Q: Also a reaffirmation of whiteness in these cases.
Bartow: Back to Dallas Cowboys – this isn’t a case about the Cheerleaders as a product, but about the Cowboys – the brand the court was worried about was the Cowboys, that people might think they had slutty cheerleaders. It was about a masculine brand!
Farley: Absolutely, this was about a male owner’s property.
Silbey: Of course, gender ideologoy is always there when we discuss men.
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