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Barton Beebe, Intellectual Property and the Sumptuary Code, 123 Harv. L. Rev. 809 (2010).

If you ever find that your reading in the field of intellectual property is becoming repetitive, or if you feel you’ve already cataloged all of the different cookie cutters that are commonly used to stamp out contemporary scholarship, then here’s what you should do: sit down to read Barton Beebe’s Intellectual Property and the Sumptuary Code and enjoy the ride.  It’s not exactly conventional beach reading for the dog days of August, but Beebe does build an intricate sand castle—he articulates a highly original thesis concerning the social function that certain trademark-related doctrines are playing in contemporary society—both expecting and hoping that it will soon collapse under its own weight.

For those of you who, like me, are not entirely literate in the history of fashion, a sumptuary law is a law that regulates luxury expenditure and enforces social hierarchy.  (P. 810.)  A sumptuary code, in turn, is roughly the social-norm analog of a sumptuary law.  It is a semiotic system of consumption practices through which individuals send signals about their differences and similarities.  (P. 812.)1  And unlike sumptuary laws, which have largely disappeared, sumptuary codes are very much alive and well.

Beebe argues that emerging technological conditions threaten the viability of the contemporary sumptuary code in that “most competitively consumed goods can be persuasively simulated,” meaning that “our increasingly powerful copying technologies threaten quickly to dilute the rarity and thus the distinctiveness of otherwise distinctive goods.”  (P. 814.)  In much less refined language, where once upon a time I could rely on scarcity, price, and closely guarded knowledge to ensure that the things that I and my kind consumed were not available to everyone immediately, and therefore to ensure that my consumption of those goods was meaningful under the sumptuary code, advanced technologies of dissemination and reproduction, overseas sweatshops, and overnight delivery mean that I no longer can.

Beebe sees intellectual property law as a last line of defense for those who are interested in maintaining a meaningful sumptuary code.  “If we wish to preserve our system of consumption-based distinction, then we require a set of laws to do the work that our material conditions once did.”  (P. 815.)  In particular, Beebe convincingly discusses at length how antidilution law, geographic indications, and traditional cultural protections restrict the production—and thus indirectly the consumption—of goods and enables consumption to retain some meaning in a sumptuary code.

Beebe’s recasting of these doctrines lying at the periphery of trademark law as the tools of last resort for those who are interested in maintaining a meaningful sumptuary code is an insightful elaboration on a more general theme that carries through a great deal of recent trademark scholarship.  The commonly observed trend is that trademarks are moving from being means (the labels placed on goods desired by consumers to indicate the origin of the goods) to ends (the desired goods themselves).  What does it mean for the mark to be a good desired by the consumer?  The mark is valuable because it signifies something to those who see the consumer consuming it.  What does the mark signify?  It sends a message about social status that, absent expansive trademark law, would be drowned out by static.  Trademark-related doctrines serve the social function of enabling marks to carry meaning not only about the goods to which they are attached to the consumer but also about the people to whom the goods are attached to those who witness the consumption.  In other words, trademark-related doctrines serve the social function of enabling a sumptuary code.

Beebe is no fan of exclusive consumption-based social hierarchies that sumptuary codes usually maintain and reinforce, so he seems to delight in foreseeing the possible demise of the very social function of trademark-related doctrines that he so carefully and ingeniously unveils.  Intellectual property does not simply maintain the meanings of extant marks.  It creates incentives for “Progress” (with the capital “P” to be taken with some irony, as Beebe fully recognizes2) in that new market entrants will fabricate new marks and attempt to endow them with new meanings.  In Beebe’s crystal ball, the inevitable “arms race” among mark producers will wear out consumers’ abilities to consume meaningful symbols and thereby herald the end of the sumptuary code.  In Beebe’s own language, “as our system of consumption-based social distinction produces more and more commodified forms of distinction, the ability of individuals to comprehend these forms may reach a limit, one beyond which a seeming infinitude of such forms of distinction appears to blur into indistinction.”  (P. 882.) Beebe then concludes with a utopian vision of what non-consumption-based systems of social distinction might rise from the pile of sand into which his castle has crumbed, but, to avoid spoiling all of your beach-time fun, this final twist I leave for you to discover yourselves.

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  1. Beebe’s interest in the sumptuary code is therefore a natural extension of his long-standing interest in the semiotics of trademark law.  See Barton Beebe, The Semiotic Analysis of Trademark Law, 51 UCLA L. Rev. 621 (2004).
  2. “Progress” is an enlightenment concept that implies not only movement away from the status quo but a directed journey to a more perfect world.  See generally John Bagnell Bury, The Idea of Progress: An Inquiry into its origins and Growth (1921).
Cite as: Kevin E. Collins, Consumption-Based Distinctions Consuming Themselves: The Rise and Fall of Intellectual Property as the Enabler of a Sumptuary Code, JOTWELL (September 30, 2010) (reviewing Barton Beebe, Intellectual Property and the Sumptuary Code, 123 Harv. L. Rev. 809 (2010)),