The Authors' Take - The rainbow flag between protection and monopolization: iconic heroine or damsel in distress?

The rainbow flag between protection and monopolization: iconic heroine or damsel in distress?

Last year the Stonewall Riots’ 50th anniversary was celebrated. Those demonstrations marked the beginning of the fight for the recognition of the rights of coloured transgenders, homosexuals and various other outcasted minorities. Fifty-one years later, the process for social acceptance of same-sex relationships is still ongoing. During this time, the LGBT community has adopted a unique representative symbol, which has acquired worldwide recognition: the rainbow flag.

Recent events have shown how the issue of social discrimination is still rooted within modern society and is yet fiercely combated by various movements that adopted different marks to identify themselves, such as the #MeToo or the #BlacklivesMatter supporters. Similarly, the LGBT community and its affiliates have adopted and used, for more than half a century, the rainbow flag and its colourful pattern to stand in defence of the LGBT community’s rights.

The article tackles the type and level of protection that intellectual property law offers to such well-known LGBT Pride symbol under the EU and US legal framework. The flag was designed to be freely used. On the one hand, this allowed a global diffusion and identification of the LGBT community under one emblem. On the other hand, such free use also allowed various misuses of the rainbow design in social and economic settings. Furthermore, the Pride symbol’s lack of protection endangers the distinctive meaning the flag has acquired (for example, in Italy the “peace” flag features an inverted rainbow pattern), considering also that new variations of the rainbow flag have been introduced to include different minorities (for example, the flag designed by Daniel Quasar in 2018). 

The article suggests that a possible solution to safeguard the flag’s inherent distinctiveness may consist of an official, international recognition that would enhance its protection, representative meaning, and endurance for the next fifty years and more. The current damsel in distress, who has fought for many years as a valiant heroine, may have the opportunity to returning to being the iconic and powerful symbol it used to be.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

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