Alt Legal Connect Session Summary: Culturally Relevant Representation
Alt Legal Team | October 30, 2020
Thank you to Morgan Sills and Akinyele Jordan for participating as a Law Student Reporters at Alt Legal Connect! Morgan is a 3L at Howard University School of Law. Akinyele is a 3L at Cardozo School of Law. Law Student Reporters had the opportunity to attend Alt Legal Connect in exchange for contributing to the social media presence of the conference. Reporters assisted by preparing blog posts and live-posting about sessions and in turn were permitted to attend all Connect sessions including valuable networking and social events to make meaningful connections with trademark professionals.
On Wednesday, October 28, Ticora Davis of The Creator’s Law Firm presented the session, “Culturally Relevant Representation.” During this session, Ticora offered strategies and practical tips for marketing to, communicating with, and representing demographics different from your own, including those outside of the US.
Ticora began her presentation by providing a definition of “culturally relevant representation.” The term has its roots in the educational context, and refers to the practice of teachers displaying cultural competence in the classroom, and making an effort to tie in what a child is learning about in school with the cultural cues and contexts they are surrounded by outside of school. When applied to legal representation, this concept becomes a formula for diligent advocacy that adheres to the cultural experience of your clients. In Ticora’s words, this means “advocacy that infuses the power of cultural context and competency on behalf of our clients.”
As an example, Ticora recounted how she was able to convince a USPTO examiner to add a client’s mark, PHOTO COOKOUT, to the Principal Register rather than the Supplemental Register because in the African American community, “cookout” has a certain connotation, and this connotation was important to apply cultural relevance to the descriptiveness analysis of the mark. In her response to the Examiner’s Office Action, Ticora demonstrated the necessity of cultural context for a proper analysis of the mark. While many people define “cookout” simply as an outing with an accompanying meal, the word is a popular colloquial term for “community” within the African American community. Davis succeeded by proving that her applicant’s mark, used the “cookout” fluidly to refer to both a “gathering of the African American community (and friends) by way of a conference, and a dining experience.”
Ticora made an important statement, that culturally relevant representation is just one more element of every lawyer’s responsibility for competency. Part of the requisite legal knowledge, skill, thoroughness, and preparation mandated by Model Rule of Conduct 1.1 is the ability to understand and translate the cultural experience of every client to successfully protect their IP.
If there is a pressing need for cultural sensitivity in the nation’s current socio-political atmosphere, cultural context has always been at issue for creators and entrepreneurs of color. To quote an article by IP Watchdog, “[w]e cannot understand IP today without recognizing the IP struggles within it.” Ticora offered sobering lessons on the United States’ history of slavery and economic exploitation to support her argument. She noted that one requirement for enslaved people at the end of slavery to gain their freedom was to transfer the ownership rights of any and all intellectual property they had created to their previous slaveowners. Later, Ticora spoke about how the entrepreneurial spirit was violently eradicated – whether by destruction of property, liberty or life – from the African American community, among others, while a spirit of servitude was encouraged. More recently, that spirit is on the rise again, which is part of why efforts must be made to support and encourage it in communities which had previously been denied it. Ticora spoke of business and intellectual property as intimately related, and so the first step towards reviving said entrepreneurial spirit could be helping a client get a trademark.
There still remains a legacy of economic disadvantage that has discouraged the participation of people of color in the IP industry. To inspire more applicants, Ticora stressed that attorneys must learn more about their clients and the marks they want to use. This includes the diversity of marks that may be proposed and the culture that inspires them, whether it is traditional food, popular clothes, regional slang, community celebrations, and terms of endearment. Where attorneys are not knowledgeable about a mark’s meaning they should ask questions until they are fully informed. This means learning the cultural context of the mark, identifying the community or traditions in question, and exploring how the mark can affect the attorney’s legal argument.
All of this takes a commitment to learning about a client’s culture. Ticora urged attorneys to make a firm commitment to learning about the people they represent, including cultural nuances, name pronunciations, and the creation of relationships to learn from colleagues. This also means tapping into unlikely resources: Urban dictionary, pop music and movies, news articles and interviews are all fair game to demonstrate the cultural use of a word.
Ticora also suggested that attorneys can encourage more diverse representation was via the USPTO’s new rule requiring that foreign-domiciled applicants appoint and be represented in front of the USPTO by US-licensed attorneys. This is a way to offer assistance to foreign-domiciled applicants and then potentially build on that relationship to continue to provide representation to communities that may have a different cultural context. However, Ticora warned attorneys to be careful: there have been reports of attorneys receiving emails from foreign-domiciled applicants offering payment in return for the use of the attorney’s identification information. Such assistance in the unauthorized practice of law can carry harsh consequences, both for the applicant and the attorney.
Finally, Ticora took some time to mention some of the ways that her firm approached cultural competence and sought to provide culturally relevant representation. She remarked that when she was getting ready to start the firm, she asked herself, “What do people hate about lawyers?” She even went as far as searching for the answer on Google. Then she took pains to do the opposite. A big part of cultural competence for Ticora’s firm is meeting clients where they are, so to speak. To this end, she uses high-quality systems, which she calls “S-class Systems” (“The S stands for Success!”) to streamline workflow and data entry and retention, including Alt Legal. She also uses technology in ways that make it easier for her clients to understand the trademark process and have a positive experience with her representation. For example, Ticora threw a Trademark Turn Up in July, aimed at celebrating the successful and soon-to-be successful registrations of her clients. Again, strategies like these are great marketing tools, but also go towards fostering the entrepreneurial spirit that Ticora spoke about.
Access the Recording and Materials: Click here
THE PHOTO COOKOUT, Reg. No is 88154352 (Thanks, Caroline!)
Anjali Vats just released a book on the topic of cultural creatorship, IP, and race. (Thanks, Nicole Gaither!)
See also “Invention of a Slave” by Brian Frye https://lawreview.syr.edu/wp-content/uploads/2018/05/Q-Frye-w-change.pdf (Thanks, Ed Timberlake!)
Another (free) conference perhaps of interest: Sixth Annual IP Mosaic Conference: The Arc is Hot! Using IP to Further Social Justice: https://iipsj.org/programs/ip-mosaic/ (Thanks, Ed Timberlake!)
UnCloned Marketing: https://www.audriarichmond.shop/products/uncloned-marketing-paperback
How to argue a trademark is suggestive: https://www.altlegal.com/blog/alt-legal-ip-docketing-blog/a-distinct-category-how-to-overcome-a-2e1-refusal