Ilanah Fhima, 'Diversity of Trade Mark Law' (2025) 74(4) GRUR International 305.
Extract
This editorial argues that trade mark law has not paid sufficient attention to diversity. Drawing on the author’s forthcoming research, the treatment of the registration and enforcement of minority language terms is contrasted with the interests of minorities in being free from offensive marks. In relation to minority languages, the central role of the ‘average consumer’ in determining meaning has meant that little attention has been given to minority understanding of trade marks. By contrast, when it comes to offensive marks the interests of minorities have been centre-stage and the average consumer has played a lesser role. However, it is argued that even in this latter context, difficult issues regarding the relationship between trade marks and the protection of diversity interests have been glossed over and indeed where the average consumer has made an appearance, her impact has been to complicate the protection afforded to minorities.
We are used to thinking about trade marks as commercial tools – after all, they must be used ‘in the course of trade’ – and less as social phenomena. However, trade mark law is calibrated by reference to consumers. Consumers are people, and people differ in their characteristics: gender, ethnicity, religion, sexuality and disability to name a few. With these differences come different sensitivities, levels of understanding and perceptions. Yet, trade mark law is not good at dealing with difference. Our barometer for registrability and for infringement is the ‘average consumer’. However, averages conceal differences, concentrating attention on what is most common. This means that in trying to be fair and treating people ‘the same’, important differences between how different groups and individuals might perceive and be impacted by marks differently have been missed.
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