WHITEWASHING AUSTRALIA'S HISTORY OF STIGMATISING TRADE MARKS AND COMMERCIAL IMAGERY.

• Date: 01 April 2019
• Author: Aoun, Fady

CONTENTS I Introduction II On the Various Roles of Trade Marks and Trade Mark Registers III A True(r) History of Trade Mark Registers as a Reflection of Our History A The Colonial, State and Commonwealth Trade Mark Registers B The Racist History C The Sexist History IV Let Bygones Be Bygones? A Evidence of Harm Caused by Stigmatising Trade Marks and Discrimination Generally B Indigenous Resistance V Conclusion I INTRODUCTION

The often championed and widely held view is that the Register of Trade Marks (the 'Register') is an unmitigated public good: a source of valuable (albeit imperfect) information, as well as a historic record of proprietary rights. Government bureaucracies charged with managing intellectual property ('IP') rights frequently emphasise that trade marks are also benign: '[T]hrough their proliferation and diversity' they play an 'important part' in the 'growth of trade in Australia and the development of our economy'. (1) If IP Australia's website contains a selection of famous Australian trade marks and reflects its hall of fame, (2) this article, by contrast, documents the Register's hall of shame. The purpose of this article is to provide a more critical assessment of registrable marks than the celebratory narrative offered by IP Australia. The historical record suggests that dehumanising, derogatory and disparaging trade marks--what this article calls 'stigmatising trade marks'--are a longstanding and integral part of the history of the Register. The research on stigmatising marks presented here emerges from many years of archival research, involving the rigorous physical review of hundreds of individual trade mark applications and bound volumes of colonial and Commonwealth Trade Mark Registers stored in the National Archives of Australia ('NAA') in Canberra and Sydney.

Australian decision-makers appear to have taken no steps to prevent the registration of stigmatising marks and have failed to utilise the prohibition on registering scandalous marks. (3) This article, however, will not engage with this absolute ground for refusal and the limited Anglo-Australian case law relating to this statutory provision. (4) Rather, the scholarly aim here is to paint a more complete and accurate picture of the Register's role in reflecting and perpetuating Australian attitudes towards marginalised Others. This research is needed in part because exposing and acknowledging the stigmatising history of the Register is an important step towards reconciliation with marginalised groups. What is more, understanding this history may well assist decision-makers in not repeating past wrongs.

A stronger regulatory response is warranted against stigmatising trade marks because they contain negative stereotypes and harmful associations that militate against the referenced group fully participating in the public sphere. Without this response, the referenced group faces a hostile public sphere, where they are afforded less dignity and respect than non-referenced groups. This creates significant communicative obstacles for referenced marginalised groups, who must first overcome the deleterious effects of stigmatising trade marks before engaging fully with the dominant (non-referenced group) on an equal platform. This article suggests the need for this robust regulatory approach--but without fleshing out its legislative form--notwithstanding legitimate concerns about the potential impact on freedom of expression. (5)

The article is organised as follows. Part II describes the publicity and other functions of Australian Trade Mark Registers and outlines the various roles trade marks perform according to trade mark theory, with a particular focus on the role of cultural and communicative interests in a trade mark system that is more commonly viewed as being concerned with economic regulation. After setting out a brief history on the colonial and Commonwealth trade mark registration systems, Part III then documents examples of stigmatising trade marks--first racist and then gendered marks--on colonial and Commonwealth Trade Mark Registers. In doing so, these marks are situated in their broader socio-economic, legal and historical contexts. This involves a brief discussion of gendered norms and prevailing prejudicial attitudes, particularly towards Aboriginal and Torres Strait Islander peoples, and paranoia towards the idea of an 'Asian invasion' that gripped early colonial and post-Federation Australia. Part IV offers an insight into the real harm caused by discriminatory practices and representations of marginalised groups. These representations, then, should not be dismissed as merely unopposed products of their time or not harmful in context. The historical record in fact demonstrates that minority/stigmatised groups did object to stigmatising representations, but that these pleas were largely ignored by dominant societal interests. Finally, Part V concludes and identifies lessons that may be learnt by decision-makers in the Australian trade mark registration system.

II ON THE VARIOUS ROLES OF TRADE MARKS AND TRADE MARK REGISTERS

Modern trade marks perform different roles and serve a range of often-competing interests. This article adopts the 'authoritative model of trade signs' (6) emerging from the unanimous High Court decision of Campomar Sociedad Limitada v Nike International Ltd ('Campomar'). (7) The Campomar model, as advocated by Patricia Loughlan, establishes the strong link between a trade mark's different roles and interests: specifically, the badge of origin, personal property and cultural resource roles are 'strongly related' to the interests of consumers, traders and the public, respectively. (8)

In their first and most traditional role--also referred to as the 'badge of origin' function--trade marks operate as indicia of the trade origin of the marked goods or services. The interests of consumers qua consumers are primarily at stake here. When trade marks serve as accurate guarantees of trade source, they are said to minimise consumer confusion, as well as reduce search costs in future purchasing decisions, thereby facilitating efficient trade in goods and services. (9) Through their previous exposure to marked goods or services, consumers are able to more easily differentiate between competing products and services, which provides them with confidence that they can again benefit from similar, if not identical, consumptive experiences in repeat purchases. (10) Trade marks in this context are effective conduits for communicative interaction between their owners and consumers.

In their second role, trade marks are 'personal property, capable of accumulating value and turning that value to account in a range of ways. The High Court in Campomar speaks of Australian trade marks legislation creating a 'statutory species of property protected by the action against infringement' and transforming 'this property to valuable account by licensing or assignment' (11) Although this personal property role is broadly representative of traders' interests, it is inextricably connected to the badge of origin role. This is because, as explained above, rational consumers that have enjoyed consumptive experiences with marked goods or services will seek out those same goods or services in future purchasing decisions. This creates a virtuous cycle: traders are incentivised (but not legally obligated) to create and maintain consistently high standards (or at least those tolerated by the market) as well as ensure (some) quality control in the delivery of their goods or services. In this way, Crennan J more recently explained that the 'core function of a trade mark [is] distinguishing the registered owner's goods from those of another, thereby attracting and maintaining goodwill'. (12)

Thus, an effective and robust system of trade mark registration and enforcement consequently permits these traders to 'preserve their goodwill'. (13) To put it differently, through the course of this trade, a pecuniary value may be assigned to this goodwill so that they become 'assets'. (14) Whether this property interest is properly characterised as a proxy for the trader's goodwill or, as the trade marks per se, it is clear that trade marks become significant assets in their own right. For example, in the latest Interbrand ranking of the 'Top 100' global brands, Apple is once more ranked as the most valuable global brand and is estimated to have a brand value of USD214,480 million. (15)

These trader and consumer interests occupy positions of central importance in modern Australian trade mark law, (16) although they are often in conflict. (17) The High Court in Campomar recognised the fundamental friction (18) between these interests:

Australian legislation has manifested from time to time a varying accommodation of commercial and the consuming public's interests. There is the interest of consumers in recognising a trade mark as a badge of origin of goods or services and in avoiding deception or confusion as to that origin. There is the interest of traders, both in protecting their goodwill through the creation of a statutory species of property protected by the action against infringement, and in turning this property to valuable account by licensing or assignment. (19) But these commercial interests are not the only relevant interests in trade mark law. As the High Court in Campomar was careful to point out, the 'exploitation of a trade mark registration ... may involve questions of public interest'. (20) Interests other than purely commercial or consumer interests should be factored into trade mark regulation and decision-making, because it is now clear (and accepted by the High Court) that trade marks are much more than pieces of personal property or mere signifiers of trade origin:

[T]rade marks may [also] play a significant role in ordinary public and commercial discourse, supplying vivid metaphors and compelling imagery...