Kate Swaine and Marion Heathcote of the MARQUES IP Emerging Issues Team discuss changes to some controversial brands in the wake of the Black Lives Matter movement.

The 'court of popular opinion' was always predicted to be the driver of progress regarding cultural appropriation and the appropriateness of brand language and imagery.

The IP Emerging Issues Team prophesised this in the session on Indigenous Intellectual Property Rights at the MARQUES Annual Conference in Villaitana 2016 which featured Ambassador Keith Harper, the then US Ambassador to the UN Human Rights Council, and again during the MARQUES Annual Conference in Dublin last year, when the Team held its workshop "Food, Fashion and Festivals – Whose Culture is it Anyway?".

The workshop explored where the line lay between brand inspiration and cultural appropriation, highlighted a number of controversial branding concepts (many of which were still in use) and considered the commercial and legal risks posed by their continued use (see blog post here).

The Team flagged this as an issue which consumers are alive to and have become increasingly vocal about and provided some suggestions to assist brand owners including ensuring greater diversity in decision making around branding and marketing practices.

In the wake of the Black Lives Matter movement, some of the controversial brand identities which the Team considered have come under scrutiny and brand owners have been reviewing their brand portfolios and the messaging that surrounds them. Some have already taken steps to make changes as a result and the IP Emerging Issues Team applauds this.

• Nestlé recently announced that it will rename its Red Skins and Chico sweets (pictured) in Australia.
• Following a petition new owner, Canada-based Saputo, has said it will cease using the controversial trade mark COON on a cheese product which has carried that name in Australia since 1935 (more details here and here). Previously there has been resistance to the pressure to change on the basis that the trade mark reflected the name of its American creator irrespective of it being known as a racial slur.
• Colgate-Palmolive is reviewing the name of its toothpaste Darlie which was labelled "Darkie" until 1989 and which translates in Chinese as "Black Person Toothpaste". Quaker Oats has announced that it will change the branding and name of its Aunt Jemima pancake and waffle mix product. Mars is reviewing the branding of its Uncle Ben’s rice range.
• Most recently, after years of controversy, the Washington Redskins American football team has announced that it will retire its name, notwithstanding a US Supreme Court ruling allowing for the registration of disparaging terms as trade marks. The announcement of the name change followed demands from sponsors to review the use of the Redskins name. The team will be known as Washington Football Team until a permanent new name is chosen.

It is likely that we will see more reviews and changes to well-known brands in the months to come. Whether we will see real legal change as to what terms should or should not be entitled to protection will remain to be seen.  

Kate Swaine is a partner of Gowling WLG and Chair of the IP Emerging Issues Team. Marion Heathcote is a partner of Davies Collison Cave and a member of the Team