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Commentary: Professor Shubha Ghosh on Retiring Offensive Brands & "Vestigial Use"

Posted on Tuesday 6/30/2020
Shubha Ghosh

(PatentlyO | June 29, 2020) As companies voluntarily retire their offensive trademarks, two questions tug at whatever passes for a conscience nowadays.  First, can these undesirable marks come back, revived by whomever sees a market niche for these symbols? This may seem like a ridiculous possibility, but on June 21, 2020, an Intent to Use Application was filed  on the word mark “Aunt Jemima” by Retrobrands, a Florida LLC, whose mission “is to revive ‘abandoned’ consumer iconic brands and to bring them back to the marketplace.” 

The second question is, do these intellectual property mea culpas do any good in the face of companies like Retrobrands and the entrenched nostalgia it represents?  After all, gallons of maple syrup were transformed into Benjamins, even more Tubmans, over the years. Should not there be some disgorgement in the form of reparations?

The proposed doctrine of vestigial use under federal trademark law can address both questions. As described below, vestigial use can prevent trademark abandonment, which would potentially allow some enterprising cultural chauvinist from appropriating the mark. Vestigial use, as applied, can also provide a new revenue source that can finance the necessary reparations.

A vestigial use is the use of a mark to maintain the memory of a brand. Instead of offensive symbols littering the shelves of your local grocery store, they can be relegated to a museum. The idea would be similar to that of Budapest’s Memento Park, where the brutalist statues  from the Soviet era have a fitting resting place, about a forty minute bus ride from the Budapest bus terminal in a rural outskirt more habitable than Siberia but just as overlooked. Memento Park is a reminder of ideas gone woefully wrong.

Vestigial use would allow a trademark owner to continue using a mark without completely abandoning it ...

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