By Jeremy Sheff*
A pdf version of this article may be downloaded here.
I’m gonna look well smart in me Burberry.
The modern brand is a social phenomenon, not just a commercial one. As consumers, we use brands as tokens of social differentiation, identification, and expression, and producers covet the commercial advantages that come with the integration of brands into consumers’ sense of identity. But weaving brands into the social fabric is an unpredictable process, one that cannot be controlled completely by brand owners or by consumers. The struggle between brand owners and consumers over the social meaning of the brand itself occasionally spills out onto the airwaves and even onto the streets. Recently, in the space of a single week, we saw two striking examples of this conflict. In one, the major American fashion retailer Abercrombie & Fitch launched a media offensive to try to assert control over the social implications of reality television star Mike “The Situation” Sorrentino’s prominent consumption of its products on MTV’s Jersey Shore. Meanwhile, across the Atlantic, managers of global brands like Adidas, Nike, and Levi’s struggled to contain the fallout from their brands being associated with the worst civil unrest Britain has seen in ages.
In at least one of these episodes, there has been some suggestion that the brand owners might take some sort of legal action to protect the value of their brands. This suggestion raises a relatively novel question of law. Even though social meaning can be one of the primary sources of a modern brand’s value, and the preservation of that value depends on the rights afforded under trademark and unfair competition law, that body of law lacks a coherent framework to deal with conflicts that arise between consumers and producers over brands’ social meanings. This Article explores one typical point of potential producer-consumer conflict suggested by the examples of the previous paragraph—what I call the “brand renegade.” I define a brand renegade as a consumer who uses branded products out of affiliation with some aspects of the image cultivated by the brand owner, but whose conspicuous consumption of the brand generates social meanings that are inconsistent with that image. Part I of this Article reviews the theoretical literature on the economics and psychology of trademarks to identify the origins of the brand renegade. Part II describes some recent examples of brand renegades in action, as well as the responses of brand owners to those brand renegades, pointing the way toward a legal showdown between the two groups. Part III turns to the availability of legal doctrines to mediate the conflict between brand owners and brand renegades, and finds them surprisingly thin. In the end, I argue that socially expressive consumption (and portrayals of that consumption) ought to be permissible as a matter of trademark law, but note that it is not clear that we have the doctrinal architecture to enforce this (hopefully uncontroversial) principle.
We can envision more than one model by which a brand can come to have social significance. Perhaps the simplest model is one in which the brand owner works to establish an image through its marketing activities—advertisements, paid endorsements, product placements, etc.—and consumers individually decide whether to identify with that image (by buying the branded product) or not. This model is consistent with the dominant theoretical model of trademark law—what I have referred to elsewhere as the “search-costs model.” Under this model, producers are thought to use trademarks to convey information about the unobservable qualities of their products—the flavor of a soda; the reliability of a car—to buyers who would otherwise be unable to find that information on their own. By this mechanism, trademarks provide the basis for both consumer choice and producer competition, building goodwill in the process. Of course, this model is essentially useless in describing a great deal of actual observed behavior surrounding consumer brands. If all consumers cared about were the images generated by the brand owner for adoption or rejection by an atomized consuming public, the fact that a rioting “chav” or a boorish braggart were known to consume the brand would be irrelevant. But clearly, brand owners care quite a bit about that type of information, most likely in the belief that consumers do as well. This suggests that there is some other type of brand information that consumers and brand owners find important, and that this information relates to the interaction between brands and the people who consume them. Brand owners could certainly try to generate such information. Indeed, much modern marketing, including the widespread use of celebrity endorsements, is directed at persuading consumers to associate particular personality traits with a brand—the Gerber Baby; the Marlboro Man; the Avon Lady; the Pepsi Generation. To the extent that such subjective associations are just one more example of brand owners creating and disseminating information to consumers, who passively receive it and react to it solely through their atomized purchasing decisions, they might conceivably be integrated into the search-costs model discussed above—as indeed they have been.
The problem is that these personality-based associations—because they do not refer back to anything more substantial than the shifting minds of consumers—behave differently than other types of product information, which refer back to the material qualities of a product. In particular, personality-based associations are freighted with vital but unstable social meaning. As consumer psychologists have shown, consumers themselves play an integral role in constructing the social meanings of the brands they consume, not least by forming, expressing and observing one another’s social identities and allegiances through acts of conspicuous consumption:
When brand associations are used to construct the self or to communicate the self-concept to others, a connection is formed with the brand. . . . [A]ssociations about reference groups become associated with brands those groups are perceived to use, and vice versa. The set of associations can then be linked to consumers’ mental representations of self as they select brands with meanings congruent with an aspect of their current self-concept or possible self, thus forging a connection between the consumer and the brand.
Importantly, however, the power of consumers to contribute to and draw on brands’ social meanings is limited by the instability of those meanings in a fluid and competitive social landscape. As Professor Barton Beebe explains, “commodified forms of distinction . . . produce in the fashion innovator or adopter a feeling of ‘significant difference,’ of being something other than a mere copy in a mass world of equivalence”; but this feeling is inevitably temporary, as “copying both destroys the distinctiveness of existing fashions and creates the need for new ones.” These features of consumer psychology demand a more dynamic model of the construction of a brand’s social meaning than trademark law currently has. In particular, they require us to come to terms with a significant amount of back-and-forth between and among brand owners, consumers, and the social audience. From the brand owner’s perspective, the participatory, decentralized, and non-hierarchical nature of the construction of a brand’s social meaning is a double-edged sword. On the upside, it allows brand owners to capture a significant amount of value that is created not by the brand owner itself, but by its customers. On the downside, it creates the risk that brand value could be destroyed by forces beyond the brand owners’ control. Chief among these forces is the brand renegade.
The history of mass marketed brands is rife with examples of brand renegades, but reveals some diversity in brand owners’ responses. This Part considers some illustrative examples.
Consider the cognac market. For decades, the House of Courvoisier marketed its product as “the brandy of Napoleon,” cultivating associations with European aristocracy (and its wealth and power) through full-page ads in upper-middle-class aspirational magazines like Fortune and Gourmet. But as American society changed, those associations began to lose their appeal in the spirit’s target market. By the late 1990s, “you almost couldn’t give France’s most famous brandy away”; cognac in general was seen “as an old fart’s drink, a digestif for tuxedoed geezers smoking cigars in wood-paneled libraries.” But a counter-trend was already underway. Over the course of the 1990s, cognac had become a fixture in African-American nightlife, and its rise was reflected in hip-hop culture. As early as 1993, West Coast rapper Ice Cube identified the gangsta rap aesthetic with, among other things, “sippin on Courvoisier.” By 2002, hip hop had moved from counterculture to mainstream, and Busta Rhymes’s single, “Pass the Courvoisier,” peaked at number 11 on the Billboard Hot 100 charts. While the old-world image of imperial power and opulence no longer had the same pull for the traditional upwardly mobile (and traditionally white) elite of the American economy, the idioms of material luxury had been appropriated by a formerly marginalized, but now culturally ascendant, segment of that economy. Importantly, hip hop did not adopt the trappings of Courvoisier’s marketing images even as it adopted the brand as an element of its identity. Rather than affecting a First Empire salon, Ice Cube situated Courvoisier in the driver’s seat of a two-tone Ford Explorer tearing down the 110 Freeway; Busta Rhymes in a prohibition-era Harlem back alley. While the Napoleonic imagery of Courvoisier’s marketing efforts shares some thematic points with hip hop’s invocations of the brand (among them ostentatious wealth, violence, and misogyny), there are obviously deep cultural differences between the two. Courvoisier’s expanding young, urban, African-American clientele were, in this sense, brand renegades: they adopted the brand itself as an element of their identity, but did not otherwise change their identity to conform to the brand’s existing marketing strategy. And given the social dynamic described above, the conspicuous consumption of the brand by these renegades could not help but reflect back on the social meaning of the brand itself. The House of Courvoisier’s response to the reshaping of its brand by forces beyond its control was highly adaptive. Rather than dispute or resist the changes in their brand’s social meaning, the brand owner co-opted the changes its customers had wrought. As early as 2000, its marketers had pivoted their messaging to appeal to a new demographic: “young, urban adults who subscribe to hip-hop culture, the vast majority of whom are African-American.” When Busta Rhymes released his single, Courvoisier’s marketers were already on the scene, “skillfully tr[ying] to capitalize on the event, in sponsoring events with P Diddy, Missy Elliott and Lil’ Kim, in particular.” By 2007, Courvoisier was touting its product as the brandy of hip-hop mogul Jermaine “JD” Dupri—Napoleon was conspicuously absent from the campaign the company launched that year. In short, rather than viewing its brand renegades as a threat, Courvoisier welcomed them as an opportunity. As a business matter, Courvoisier’s response to its brand renegades makes perfect sense. The release of “Pass the Courvoisier” coincided with an 18.9% rise in Courvoisier’s sales, and the adoption of the brand by a new generation of drinkers saved it from a decades-long decline. Indeed, it is possible that any other course of action might have threatened to damage Courvoisier’s business—as the makers of Cristal champagne learned when they failed to give rapper Jay-Z the respect to which he felt entitled as a successful and influential brand renegade. Courvoisier was thus in the fortunate position of capturing the positive value of social meanings it did not create by virtue of those meanings becoming associated with its brand through the actions of brand renegades. But more difficult questions arise when the effect of brand renegades on a brand owner’s bottom line is not so unambiguously positive. The rest of this Part illustrates these difficulties.
As the row between Jay-Z and the makers of Cristal shows, brand owners who invest in cultivating a certain image may not always be grateful to brand renegades who change that image. This ingratitude strikes us as foolish in the hip-hop context, where the adoption of niche luxury brands by a large but marginalized demographic broadly expands those brands’ commercial appeal (and thus their profitability). But such ingratitude may be entirely understandable where the customers attracted to the social meanings created by a brand renegade may be offset or even overwhelmed by customers who are loyal to the brand’s preexisting image and who find its new meanings repellent. Take the example of MTV’s Jersey Shore. The reality series is a ratings bonanza for MTV parent Viacom and a bona fide cultural phenomenon. It is also deeply offensive to a substantial and vocal population. The arbiters of culture find its cast members—such as the aforementioned “The Situation” and Nicole “Snooki” Polizzi—to be the personification of bad taste and bad character. And understandably, many people do not want to be associated with such characters. There are, accordingly, a fair number of brands that do not want to be associated with the cast of Jersey Shore either, and those brands’ owners will go to some lengths to avoid any such association. For example, in an episode I have discussed elsewhere, it was rumored that some fashion houses were gifting their competitors’ high-priced handbags to Snooki in the hopes that her déclassée image would rub off on those competitors, to the gift-giver’s benefit. To be sure, an association with Snooki—to whom the New York Times once attributed the epithets “[f]lake, cow, loser, slut, idiot, airhead, trash, penguin, creep, moron, midget, freak, Oompa-Loompa, nobody”—is probably not something most customers of most luxury fashion brands want. But there is a huge population of young people who find her irresistible, even admirable. The same can be said for The Situation. As New York Magazine put it, “Jersey Shore . . . made him famous enough to make money off a branded creatine shake.” And in a recent, highly publicized incident, he stepped into the role of brand renegade. In August of 2011, a retail analyst noted that a recent episode of Jersey Shore had shown The Situation “wearing a pair of neon green A[bercrombie] & F[itch] sweatpants ‘loudly (and proudly)’ on the streets of Florence.” Abercrombie & Fitch’s “Brand Senses Department” responded swiftly with a press release proposing what it called “a Win-Win Situation.” The release protested that association with Jersey Shore “is contrary to the aspirational nature of our brand, and may be distressing to many of our fans.” Accordingly, Abercrombie & Fitch made it known, the company had offered to pay The Situation (and other members of the Jersey Shore cast) not to wear its clothes. This was a bit rich. As the press reported, Abercrombie & Fitch is “no stranger to controversy, with its racy marketing campaigns featuring nearly naked models.” As The Situation himself had noted some time before, one of Abercrombie & Fitch’s more popular t-shirts is emblazoned with the word “Fitchuation.” Even while dutifully reporting the release, major media outlets recognized they were the instruments of a publicity stunt that was curiously timed to coincide with a quarterly earnings call and the announcement of a major expansion. Abercrombie & Fitch did not appear to be seriously distancing themselves from the brand renegade, but at the same time they were not trying to co-opt him, as in the Courvoisier example above. Rather, the company seemed to be trying to leverage him. Clearly, Abercrombie & Fitch wanted the public to know two facts about The Situation: first, that he wears the company’s clothes, and second, that the company is not comfortable with him wearing its clothes. The first message is designed for fans of Jersey Shore; the second, for their bill-paying parents (and the show’s detractors more generally). If successful, this stunt may succeed in capturing the upside value of The Situation’s social connotations without suffering their downside—a “Win-Win Situation” indeed. Still, this is a dangerous high-wire act for a brand owner to play when faced with a brand renegade. Even a rumor or hint that the brand owner is trying to distance itself from the social identities of its customers can be commercially devastating. As the Recording Industry Association of America discovered at great cost, a business strategy that depends on publicly attacking your customer base is likely to be counterproductive. Still, a constant threat hovers over the brand owner who tries to court the brand renegade without alienating the brand loyalists. At some point, one of these constituencies may put the brand owner to a choice.
On the evening of August 4, 2011, 29-year-old Mark Duggan was shot dead by police in the north London neighborhood of Tottenham. On August 6, what started as a peaceful protest over the shooting erupted into a violent anti-police riot. Over the following days, rioting spread throughout London and Britain more generally, evolving into an expression of an undifferentiated amalgam of social, political, and economic discontentment; the conditions of public disorder set the stage for a wave of nihilistic and opportunistic violence and looting. Young people in particular seemed to see the riots as an opportunity to assert their independence from political, legal, and economic authority; as two young women interviewed by the BBC explained:
It’s the government’s fault . . . . Conservatives . . . whatever, who it is . . . . [T]hat’s what it’s all about, showing the police we can do what we want, and now we have . . . . We’re just showing the rich people we can do what we want.
One thing they wanted was fashion brands. The press reported that looters of some clothing stores were seen trying things on before they stole them. One of the most riveting images of the rioting appeared on the front page of the August 9 issue of The Guardian: a masked young man, backlit by the carcass of a burning car, decked head-to-toe in an immaculate Adidas hoodie tracksuit (with the shoes to match). As looting became widespread, the media began to report that certain brands that had cultivated an image of confrontational, rebellious youth in their marketing—brands like Adidas, Nike, and Levi’s—were particularly targeted by the young rioters for theft. The implication was that these brands had been playing with fire by glorifying resistance to authority and associating it with their unattainably high-priced goods, and that they accordingly deserved some share of the blame for the destructive actions of their disaffected young customer base. Whether this was a fair characterization of the rioters’ actions and motives or not, public association with the lawless mayhem on Britain’s High Streets took a toll on several brands, and their marketers went into “lockdown mode” to determine how best to respond to the crisis. A generation of brand renegades had become a national story. Adidas drew attention in this story not for any specific aspect of its marketing campaign (except perhaps its choice of hip hop artists with criminal records as paid promoters), but rather because so many rioters were conspicuously wearing (and stealing) Adidas-branded clothing. Like The Situation and the various hip hop artists described above, these looters had become brand renegades—due to their actions the public could not help but associate the Adidas brand with the lawless mobs in the streets. Adidas responded vigorously against this threat to its brand image, and “took the step of condemning its customers for taking part in the riots[:] ‘Adidas condemns any antisocial or illegal activity,’ the company said. ‘Our brand has a proud sporting heritage and such behaviour goes against everything we stand for.’” Levi’s, in contrast, drew particular attention for a global marketing campaign it had unluckily launched just before the riots erupted. The flagship television ad for the campaign, entitled “Go Forth,” is a video montage of passionate and rebellious young people set against a reading of Charles Bukowski’s poem, The Laughing Heart. In one vignette, a young man stands alone in the middle of a ransacked urban square, taunting a phalanx of riot police in view of cowering onlookers, while the narrator passes over Bukowski’s line: “you are marvelous.” The media seized on the ad, and Levi’s backpedaled as hard as it could without explicitly disavowing the imagery it had used. It postponed its planned release of the “Go Forth” ad in British cinemas and on Facebook, but continued to make it available on YouTube and on the campaign website. Unlike Adidas, Levi’s resorted to vague generalities and the passive voice in an attempt to put some distance between its brand image and the rioters without explicitly criticizing its young customer base:
We are deeply disheartened about the unprecedented events taking place in the UK at the moment and which have impacted communities across the country. While Go Forth is about embodying the energy and events of our time, it is not about any specific movement or political theme; rather, it’s about optimism, positive action and a pioneering spirit. Out of sensitivity for what is happening in the UK, we have temporarily postponed our cinema and Facebook spots in the country.
Between the responses of Levi’s and Adidas to the UK Riots lies the limit of the win-win strategy’s effectiveness against the brand renegade. Levi’s seemed to think it could placate the brand renegades’ social critics without alienating the renegades themselves—precisely the strategy pursued by Abercrombie & Fitch. It attempted to do so by highlighting what its cultivated image and its brand renegades (in this case, rioters conspicuously looting Levi’s goods) have in common, while ignoring what makes those brand renegades different (and threatening to others). Adidas clearly concluded that it could not strike this balance, and abandoned the brand renegades in favor of the rest of its customer base. Rather than focusing on what its brand renegades have in common with Adidas’s cultivated image, the company focused on what makes the brand renegades different, and explicitly attacked it. The judgments behind these decisions are both commercial and social. They test the margins of profit and persuasion in the tradeoff between brand renegades and brand loyalists, all against the backdrop of a wider social audience. Adidas, alone out of all the brand owners discussed in this Part, seems to have found itself on the wrong side of those margins. As we approach this limit of the brand owner’s tolerance for the brand renegade, we come to the question that began this Article: is there any role for law in mediating the conflict between them?
The law of trademarks and unfair competition is at its most lucid when it purports to regulate competition along commercial dimensions. The most clear-cut applications of trademark law deal with conflicts that arise between competing producers regarding identification of the source of goods offered for sale to the public. When a consumer thinks she is buying a quality widget from Producer A, but in fact she is getting a shoddy widget from Producer B, both the consumer and Producer A have cause to complain, and the law has long given each of them a remedy without generating significant controversy. The difficulty arises when the law tries to reach past these types of source-confusion conflicts.
Trademark law’s relentless expansion is the overarching story of the past century of development in the field. Whereas once the maker of BORDEN ice cream couldn’t recover against a company selling BORDEN condensed milk, such rigid limits on the market scope of trademark rights began to erode in the early part of the twentieth century. As consumer markets expanded beyond local and regional boundaries, strict geographic limits on the scope of trademark rights eroded. And as the law’s treatment of trademark licensing went from overtly hostile to broadly accommodative, courts came to condemn not only commercial practices that led to consumer confusion as to source, but those which might lead consumers to mistakenly believe that a defendant is affiliated with, or sponsored by, a trademark owner. This shift, combined with the rise of product placement and embedded advertising in popular entertainment, brought the producers of expressive works and cultural products into trademark law’s ambit. Finally, in 1995, Congress severed the link between competition and trademark liability for “famous” trademarks entirely, by creating a cause of action—dilution—that is explicitly available “regardless of the presence or absence of . . . competition between the owner of the famous mark and other parties.” Importantly, the expansion of liability to encompass sponsorship and affiliation confusion generates its own momentum, in what Professor James Gibson has referred to as a “feedback loop.”  Uncertainty about the limits of trademark rights leads risk-averse commercial actors to submit to trademark owners’ claims (e.g., by taking a license or removing references to the mark) rather than contest them. The observable results of this behavior then inform consumers’ perceptions as to the prevalence of sponsorship or affiliation relationships in the marketplace. This changed understanding of consumers, in turn, expands the universe of conduct which could generate confusion as to affiliation or sponsorship. The result is that trademark liability’s boundary is never clear, and yet clearly always expanding.
The brand renegade represents the final frontier of trademark law’s expansion. The self-generated momentum of that expansion is surely accelerated by brand owners’ decisions to co-opt (or at least try to leverage) brand renegades. Over time, observers may come to presume that each new brand renegade is actually affiliated with the brand owner—indeed, this already appears to have happened in the hip-hop context. As subtle, informal, and post hoc cross-promotional relationships become increasingly common in the entertainment industry, and as user-generated content is increasingly incentivized by marketers themselves, the line between independent consumer and sponsored affiliate is already frustratingly difficult to draw. Finally, as marketers begin to turn to the same social networking tools and participatory demonstrations that have recently become a hallmark of organized civil unrest, it may be only a matter of time until a significant number of consumers genuinely come to believe (perhaps with good reason) that the latest riot tearing through their communities enjoys corporate sponsorship. Despite these trends, our intuition is that there must be some limit to the power of brand owners to control perceptions of their brands, particularly where those perceptions are based on our observations of actual consumers. As Professor Rebecca Tushnet notes, “[t]here is nothing (as yet) that Coca-Cola can do to erase my memory of the time I spilled a Diet Coke into my keyboard,” and it would strike us as absurd (I hope) to suggest that Coca-Cola might sue Professor Tushnet for having created such a negative association with its brand in her own mind (or, having read her article, in ours). Similarly, I suspect most people would find it implausible that a consumer could be assessed damages for wearing Adidas to a riot, that a reality television star could be enjoined from walking down the street wearing a pair of neon green Abercrombie & Fitch pants, or that a rapper could be sued for ordering Courvoisier at a nightclub. Our intuition is that there must be some intelligible limit on the legal weapons the brand owner can deploy against the brand renegade. But where in the law are these limits to be found? We might try to satisfy our intuition by setting certain categories of conduct outside trademark law’s reach. For example, one could argue that consumption of a brand owner’s products, and perhaps the portrayal of that consumption in expressive works, are categories of conduct that should be outside the bounds of trademark liability. But it is not at all clear that this is the case under current law. Portrayals of brands in expressive works are not, as a category of conduct, beyond trademark law’s reach. And there is no doctrine that one can definitively point to in hopes of placing consumption, as a category of conduct, entirely outside of the reach of infringement liability—indeed, there is anecdotal evidence that brand owners are moving to regulate consumption directly. Moreover, consideration of doctrines that might be invoked to impose such conduct-based limits on trademark liability only serve to demonstrate the absence of such limits. Take, for example, the doctrine of “trademark use” or “use as a mark.” For approximately a decade, scholars and judges debated whether “trademark use” is an element of a trademark infringement or dilution claim, and if so what trademark use means and how it might be established. After the spilling of much ink, we appear to have an answer: there is no trademark use requirement at all for infringement claims, but “use as a mark” is a necessary element of dilution claims. The plaintiff’s burden on this element of its dilution claim is simply to show that the defendant’s use involves some goods or services other than those of the plaintiff. This limitation on dilution claims would indeed seem to shield the brand renegade in his capacity as consumer from blurring or tarnishment liability. But it would not shield the producers of expressive works that portray the brand renegade’s consumption, nor would it necessarily shield the brand renegade who consumes in the process of rendering entertainment services—a reality television star on a shoot, for example, or a rapper appearing at a promotional event. And of course, both the brand renegade and the producer of expressive works portraying his consumption would find no refuge from infringement (as opposed to dilution) liability in the trademark use doctrine. As another potential doctrinal tool to limit brand renegades’ liability, consider the related but distinct requirement of use in commerce. By both constitutional and statutory command, federal trademark liability may only attach to conduct that constitutes a use of a mark “in commerce”—specifically, in interstate or foreign commerce. But only minimal reflection is required to conclude that this limitation on the reach of trademark liability offers no shelter to the brand renegade. With respect to expressive works that are themselves released into the stream of commerce, a plaintiff would have no trouble satisfying this requirement. And as every law student learns, the scope of “commerce” subject to regulation by Congress is exceedingly broad. It is no great leap from the proposition that a farmer can be restrained in growing wheat for his own consumption due to the effect of his self-sufficiency on the economy-wide demand for wheat, to the proposition that a consumer can be restrained from consuming branded products due to the effect on the economy-wide market for that brand. This is particularly true where there is a thriving market for brand affiliation, in which brand owners compensate consumers for their conspicuous consumption of and advocacy for the brands they enjoy. In short, the use in commerce requirement is perhaps even less useful than the trademark use requirement in satisfying our intuition against holding brand renegades liable to brand owners. In light of these shortcomings of established doctrine in satisfying our intuitive policy inclinations, some commentators have proposed novel, alternative limits on the reach of trademark liability. Professors Mark Lemley and Mark McKenna, for example, suggest that liability for sponsorship and affiliation confusion might usefully be restrained by investigating whether the confusion at issue in any given case is likely to materially affect consumers’ purchasing decisions, arguing that any other form of confusion is irrelevant to trademark law’s policy objectives. While the concept of materiality that Professors Lemley and McKenna borrow from false advertising law is a useful criterion for restraining the expansiveness of sponsorship and affiliation confusion liability in general, on reflection it does not seem to do much work in the narrow case of the brand renegade. Professors Lemley and McKenna argue, convincingly, that brand owners are unlikely to suffer any lost sales from most forms of sponsorship or affiliation confusion, making materiality a useful policy lever. But clearly, and particularly for brands that trade on social meaning, brand renegades do affect purchasing decisions, at least in some circumstances.
I propose that the intuition against imposing liability on brand renegades is better served by a principle that has historically served to limit trademark rights: freedom of expression. Professors Lemley and McKenna cite this principle as one justification for their materiality proposal, but with respect to brand renegades, it is likely the entire issue. At stake in the conflicts described in Part II of this Article is the balance between the expressive interests of brand owners and the expressive interests of brand renegades with respect to the social meanings of the brands in which they each claim a stake. The ultimate question is: will the law give either of these parties any preference in constructing those meanings? Professor Thomas McCarthy, the author of the leading American treatise on trademark law, has advanced the argument that a trademark owner has a First Amendment interest in not being associated with controversial persons (such as brand renegades) and the negative social response to them. Notably, though, Professor McCarthy’s argument on this point claims exactly zero support from the trademark caselaw. In contrast, First Amendment concerns are reflected in numerous trademark law doctrines under which courts have shielded persons other than the brand owner from liability: the protection of criticism and parody; the cabining of infringement claims against the titles or contents of expressive works; the doctrines of descriptive fair use and nominative fair use; and the statutory limits on dilution claims, to name just a few. In general, these doctrines recognize that overbroad assertions of trademark rights can inhibit the expression of ideas that either promote competition (in the case of fair use) or provide socially useful information regarding trademarks and their owners (in the case of defenses for parody and criticism). To avoid such chilling effects, the law limits the control mark owners may assert over the uses others make of their marks. In many—if not most—of these doctrines courts tend to suggest that the First Amendment interest may be vindicated only where (or even because) there is as a factual matter no consumer confusion of which the brand owner might complain. But it must be admitted that this is unlikely to be true for brand renegades. As discussed above, brand renegades by definition affiliate themselves with some aspects of the brand, and as brand owners continue to co-opt and leverage brand renegades, consumers are increasingly likely to be confused as to whether the affiliation runs both ways. Merely protecting brand renegades who do not confuse as to affiliation or sponsorship is unlikely to avoid trademark infringement liability in the modern marketing environment. The principle of freedom of expression must trump the concern over confusion for us to conclude that the conduct of brand renegades is not actionable. One doctrine reflects precisely such a prioritization of interests, and it is directly applicable to one of the categories of conduct that is the subject of our intuition against the imposition of liability. This is the strict test for infringement applied to expressive works. Under Rogers v. Grimaldi and its progeny, such works will infringe a trademark only where their use of the mark has “no artistic relevance” to the underlying work. Characterized as an exercise in “balance,” this standard explicitly accepts some degree of confusion in order to avoid chilling expression. Application of Rogers would almost certainly protect a rapper in his lyrics and a reality television producer in its broadcast, while analogous constitutional privileges of the press would surely protect a newspaper in its coverage of a riot. While the caselaw interpreting the federal dilution statute is more limited, it suggests a similar result in dilution actions. Nevertheless, it is not clear that the subjects of these expressive works—the consumer brand renegades themselves—would enjoy similar protection. Indeed, if Professor McCarthy’s view is correct, there might be some justification for imposing liability against consumers who create such associations. Thus we come, finally, to the ultimate question: whether the brand renegade, who alters a brand’s social meaning by the mere act of conspicuously consuming it, is within the reach of trademark liability. If our intuition is that the answer to this question must be no, I submit that this intuition can be justified only by recognizing through law what consumer psychologists have concluded through research: that for brand renegades as for the rest of us, consumption itself has an expressive character. If the reason for tolerating confusion with respect to the expressive works described in the last paragraph is that there is social value in the expression inherent in portrayals of a brand renegade’s consumption, it follows that the ultimate source of that value is the consumptive act itself—passing the Courvoisier, donning Abercrombie & Fitch pants, or wearing Adidas on a looting spree. As discussed in the first Part of this Article, we engage in such consumption in no small part to forge our social identities, to communicate those identities to others, and to modify our identities in response to similar communications we receive through others’ consumption. Where that consumption relates to branded goods, the brand itself becomes in at least some measure the subject of a social, not just a commercial, discourse. The possibility of socially expressive consumption is not novel—quite the opposite. But it is a possibility that American trademark law has yet to fully grapple with—perhaps because the expansion of liability under that body of law is only now reaching the point where consumption itself is implicated. Where the law and commentary have recognized First Amendment interests, it has generally been with respect to either talking about (and perhaps critiquing) a brand’s cultivated associations, or directly invoking those associations as a kind of shorthand vocabulary. The brand renegade forces us to recognize a new category of expression—one which both appropriates some aspects of a brand’s meaning and alters that meaning by giving it new social context. We must recognize that consuming a brand can in itself be a form of commentary on and critique of the social meanings inherent in that brand—particularly where the brand owner explicitly trades on those meanings by cultivating personality associations in its marketing. As brand renegades continue to engage in this form of expression, and brand owners increasingly conflict with them, we are sure to be called on to integrate that conflict into the uneasy legal balance between the ever-expanding sphere of trademark liability and our First Amendment principles. I submit that in this narrow context, the balance is a relatively easy one to strike. Professor McCarthy argues that brand owners should be permitted to contribute to a brand’s social meanings, but that nobody else should (at least not without the brand owner’s approval). He argues, in short, for judicially enforced viewpoint-based restrictions on expression. In contrast, the intuition against liability that has been the subject of the investigation in this Part demands no such discrimination; it merely demands that the law treat the brand owner and the brand renegade on equal footing with respect to their contributions to the social meaning of a brand. As between these two alternatives, the intuition investigated in this Part fares far better under the First Amendment than Professor McCarthy’s alternative. Doctrinally, I propose that the best vehicle for the intuition I have attempted to vindicate in this Part is to extend the balance struck by Rogers and its progeny (and the analogous dilution authorities) from the case of expressive works to the case of expressive consumption. Absent an explicit claim by the brand renegade that the brand owner approves of his conduct, the expressive dimension of his consumption deserves protection from trademark liability.
In this Article, I have argued that conspicuous consumption of brands whose owners have cultivated particular social connotations is, in itself, an expressive act. This act cannot help but contribute to the social meanings of the brand itself, and as brand owners increasingly try to actively manage such associations, public confusion as to affiliation or sponsorship may result. Where the consumption is performed by a brand renegade—someone who identifies with some aspects of the brand’s cultivated image but who also generates social meanings inconsistent with that image—we face a conflict for control between the brand renegade and the brand owner. My argument in this Article—as elsewhere—is that in this struggle to control social meaning, which implicates not only the identity of the brand but the identity of members of a community, both parties ought to be equally free to make their case, and the social audience should be free to decide between them.