ARE YOU THERE, TRADEMARK LAW? IT'S ME, MISOGYNY.

• Author: Bartow, Ann
• Position: Symposium Conference: Are You There Law? It's Me, Menstruation

INTRODUCTION

When I became aware of the emergent body of legal scholarship on menstruation related topics on which this Symposium builds, I thought that the authors of these articles were very brave. (1) I'm an imperfect but life-long feminist and accepted the emotional challenge that writing this Essay posed for me out of gratitude to those authors. Because my principal scholarly focus is intellectual property law, I approached the topic through the lens of trademark law. Part One of this article positions this Essay firmly within the contours of the author's life and personal experiences with menstruation. Part Two maps common trademark and branding practices related to tampons and sanitary napkins. Part Three explains that the Lanham Act does not offer legal mechanisms by which to challenge the federal registration of sexist trademarks. As with racist trademarks, amplified criticism and persistent public pressure are the main mechanisms available to foment positive change in the marketplace for feminine hygiene products.

1. Menstruation, Manipulation, and Shame

   The book "Are You There God? It's Me, Margaret" by Judy Blume had a profound effect on me when I was around eight or nine years old. I used my own money to buy a stealth copy after being left unsupervised in a mall bookstore and found the story both compelling and confusing. I knew nothing of puberty or menstruation. I didn't have any close friends with older sisters, and the topic had never been raised with me by my parents or anyone else. But somehow, I knew I needed to read that book.

   After I'd read it at least three times, I lent it to a similarly clueless friend who had once showed me a wrapped tampon, and said she thought it was "something mothers have to shove up their butts to keep their heinie holes open." We dared not unwrap it, and all we could feel through the paper cover was a plastic tube. Her mother caught her with my copy of "Are You There God, It's Me, Margaret" and called my mother about it. To my mother's credit, she read the book before confronting me about it. The stupid lie I was going to tell--that I bought the book because the main character was named Margaret, my mother's own name--turned out to be unnecessary. She wasn't angry at me and she was fascinated by the book. But she had a really difficult time talking to me about menstruation, and we have never to this day discussed sex or birth control. I felt a lot of shame and fear about all of those topics as a teenager, and I'm not entirely over it.

   When I got my first period at age thirteen, it made my parents very uncomfortable. My father instructed me to wrap my used sanitary napkins thoroughly in toilet paper and then put them in an outdoor trashcan. He did not want to encounter any evidence that I was menstruating. When I got a small notebook to keep track of my menstrual cycle, I marked the cover only with a large dot (a period!) so that if anybody else saw it they would not know the meaning of the dates inside.

   I changed sanitary napkins very frequently because I did not want to smell like blood. (2) My family did not have a lot of money, and my mother constantly reprimanded me for using "too many" sanitary napkins, so I was always worried about supply. I sometimes bought some back up pads with my babysitting money and hid them in my room, but the first time that stash got depleted, I swiped some of my mother's tampons and learned how to use them. And then there were those terrible days when I went to school with a giant wad of toilet paper in my pants, several changes of underwear, and pockets filled with coins that I could use to buy napkins from the machine in the girls' restrooms.

   One day I inserted a pilfered tampon only to realize that it had a manufacturing defect and lacked a string. This put me into a panic, and I convinced a friend to drive me to the Planned Parenthood in a neighboring town so that I could get medical assistance. When I got into the stirrups for the very first time in my life, and explained my difficulty to the nurse, she asked me, "Why didn't you just reach in and pull it out yourself?" The terrified look she got from me in response led to one of the most important conversations I have ever had in my life. She fished out the stringless tampon with a speculum, and firmly told me I needed to become more familiar and comfortable with my body. She advised me to touch myself everywhere, without shame, so that I could figure out what was where and how things worked. She also suggested that I buy a copy of "Our Bodies, Ourselves," (3) which was terrific advice. Not only did I learn a lot from the book, but I found out that some of my friends also had copies, which was an icebreaker for some very frank and helpful conversations about birth control, sex, and boys. Still, we never discussed menstruation beyond noting when we had our periods, worrying that we hadn't gotten our periods, or complaining about cramps.

2. Menstruation, Trademarks, and Branding

   In a recent essay published in the New York Times, the author observed that while her preteen daughter watched an hour long "period film" at school, it was not shown to the boys, because they were deemed "not ready." (4) Pornography can be the primary or even only "sex education" that young people receive. (5) I suspect it is rare indeed that pornography teaches accurately about fertility and menstruation. Most of my early education--and miseducation--about menstrual products came from advertisements. For example, when a commercial informed me that "o.b." tampons were invented by a female gynecologist, I was impressed but confused. I knew what an O.B./G.Y.N. was, even though I had never seen one. Since o.b. is a common abbreviation of "obstetrician," I wondered why they weren't called "g.y.n" tampons instead. When you require an obstetrician, you do not usually need tampons. But it turns out that the o.b. in o.b.[R] brand tampons actually stand for "ohne binde" in German, which means "without napkins." (6) Nevertheless, the company overtly ties its tampons to medical science in its origin story:

   It all began 50 years ago with German gynecologist Dr. Judith Esser's personal quest for a smarter tampon. Her fruitless search led her to develop her own tampon design, one that was easy to use, comfortable, and (most importantly) provided great protection. To this day, the o.b.[R] brand continues to retain a board-certified gynecologist and research teams to pursue Esser's vision for creating safe, effective, and innovative options for women. (7) Without good quality sex education as a counterpoint, I was heavily influenced by the marketing campaigns around feminine hygiene products. I ascertained that I was supposed to douche, even though douching can lead to many health problems, including infertility, vaginal infections, and sexually transmitted infections. (8) I learned that Summers Eve Fresh Scent (9) Douche "has been gynecologist tested for gentleness," "will leave you feeling clean and fresh," and unlike Summers Eve's insipid commercials, the product would "make sure you're getting the proper attention you so rightly deserve without irritation." (10) I learned that tampons were suitable for surfing and horseback riding, (11) and that one particular brand had been found to give "super comfort and super plus protection" in tests that were supervised by doctors. (12) I heard about all manner of sprays, "cleansing washes," and scented clothes intended to make my vagina smell like "Sweet Oasis," "Golden Glamour," "Blissful Escape," "Tahitian Sunset," or many other chemical scents. (13) I was supposed to smell like anything except myself, with a strong floral trend in evidence among the scented options.

   Most powerfully of all, I learned that I was supposed to hide any evidence that would suggest I was menstruating. And I am far from alone in this. (14) A few years ago, the prestigious science publication Nature contained an article entitled: "Fighting the menstruation taboo in the field" in which field researchers discussed the challenges of menstruating in geographically remote areas. (15) These challenges were primarily caused by a lack of privacy and "a macho culture in the field that might not consider coping with menstruation sufficiently 'tough.'" (16) The article was intended to "help to raise awareness that periods shouldn't be a taboo topic," and to reduce the stigma so that people could feel more comfortable discussing menstruation. (17) One interested observer noted:

   How American woman manage and approach menstruation is called the "modern period," according to historian Lara Freidenfelds. She explains the concept in her 2009 book, "The Modem Period: Menstruation in Twentieth-Century America." "It's the idea that your body does not undermine your ability to be productive at school or at work," Freidenfelds said in an interview. "It's a body that doesn't smell or have cramps." At the turn of the 20th Century, women wore cloth diapers to manage their flow. By the 1920s, women entering the burgeoning pink-collar job market felt pressure to be discreet and presentable...