2023 Writing Competition First Place

This paper considers the current legal landscape for holders of disparaging trademarks. Two major events over the past several years have led to a simultaneous push and pull in the world of racially disparaging marks: the Matal v. Tam decision and the murder of George Floyd. The force of these two events has made it newly possible to protect a disparaging trademark on the federal register while at the same time making it less socially acceptable to continue using one at all. The net result of this was to open up a new opportunity for small “trademark entrepreneurs” to exploit the disparaging marks that many large companies had just walked away from. Because the use of disparaging marks has negative social and business ramifications, it is important to consider how the law currently treats those mark holders who choose to voluntarily abandon such trademarks. This paper reviews the treatment of disparaging marks by the Lanham Act as interpreted by courts before and after the landmark Tam decision. It then summarizes the state of abandonment doctrine, arguing that the law does not adequately support socially motivated abandonment. Specifically, it considers the path forward for a particular trademark, Miss Chiquita, which has been considered by some to reinforce racist and sexist stereotypes. While there is opportunity for the law to more fully support such efforts, this paper outlines the steps the Chiquita brand should take to successfully abandon this mark without risking that a competing brand or trademark entrepreneur could exploit the mark in the future.