A Law Professor Looks at Marriage as a Trademark

What if the concept of marriage was trademarked, like "Coke "? How would allowing same-sex couples affect the value of that trademark? An essay by a law professor on Slate.com asked and answered those questions.



But the objection snaps into focus when you look at marriage as a form of intellectual property (as my colleague Carol Rose, an expert in property law, encouraged me to do). The law of trademark, particularly the doctrine of tarnishment, is particularly illuminating here. A trademark is a mark a person or business uses to brand its products or services. A "tarnishment" claim arises when a competitor uses that mark in a way that diminishes its cachet.



But tarnishment analysis cannot justify the objection it illuminates for at least two reasons. First, intellectual property law seeks to protect intangible goods that belong to people because they have created and built up good will for them. No such claim can be made about state-sponsored marriage, because no individual invented marriage, and no individual owns it. Second, and probably more importantly, the tarnishment analogy reveals the homophobia in Hyde's claim. Tarnishment claims arise only when the mark is being associated with something uniformly deemed unsavory. The paradigm case is a famous mark used in a sexually explicit context, like the 1996 case in which the game manufacturer Hasbro successfully barred a sexually explicit Web site from using "Candyland" as part of its domain name. To say that marriage would be tarnished by including gays is an oblique way of saying straight marriage is sacred while gay marriage is profane.


The fear of tarnishment is why some believe gay marriage will negatively affect straight marriage. But it is also the reason they should not be allowed to prevail. If marriage is changed to include all couples who subscribe to its values, the institution will not be tarnished, but burnished.



Rather than same-sex couples diminishing the institution of marriage, I have grown to believe that in fact excluding them diminishes it. Any straight couple that believes their marriage would be devalued by allowing same-sex couples the same legal rights probably has issues of their own they should be focusing on and leave others alone.