Publication details
Ilanah Fhima, 'Multiculturalism, Minority Language Rights, and Trademark Law: Protecting the Less-than-Average Consumer' (2025) 115(3) The Trademark Reporter 601.
Abstract
Trade marks and minority rights may not seem like natural bedfellows. However, this article argues that our approach to which marks we register, and the scope of protection they are afforded, once registered, play an important role in recognizing minority interests as part of a multicultural society. In particular, it is argued that trade mark law’s frequent recourse to seemingly neutral 'one size fits all' approach to the average consumer fails to take into account the particular need of minorities. While trademark law may not deliberately treat minorities worse than consumers generally, it is argued that protecting minority interests requires us to go beyond treating everyone the same, with a view to eliminating inequalities that might otherwise occur from different starting points and pursuing goals of equality and a wider understanding of non discrimination. In particular, this article focuses on the United Kingdom’s treatment of languages other than the majority language, English. It examines empirically and qualitatively the extent to which the UK Trade Mark Registry and courts consider the meaning of a language that may be unknown to the majority of consumers when assessing descriptiveness in particular, and in judging confusion and misappropriation-type actions. This involves considering whether tribunals consider knowledge of terminology and pre-existing uses that may be known only to a limited subset of consumers on national, religious, or ethnic grounds. These narrow but important questions have much to tell us about how minorities are treated. Drawing on political philosophy, this article identifies the importance of recognizing the language of minorities both as an intrinsic value, and also as part of the achievement of a multicultural society. Moreover, on a practical level, if the law does not take into account minority language meanings, there is a risk that the very harms that trademark law seeks to prevent will be suffered by minority group members (and indeed wider society if the term might enter the English language in the future).