Photo by Max Bender (Unsplash)
Olaoluwa Oni is a published author and a graduate research student at Osgoode Hall Law School. Her debut novel, The yNBA, is Nigeria’s first legal drama novel.
A new movie in the James Bond franchise – No Time to Die – was recently released worldwide. The plot of the new film follows the Bond-movie archetype: the MI6 agent is sent on a crime-fighting mission, working with an attractive woman – a “Bond Girl” – to defeat villains who – and this is the subject of this article – are facially disfigured.
The phrase “James Bond 007” (“Bond Mark) is a registered trademark for, among other things, “entertainment services by way of motion picture”. This suggests that all Bond movies are produced under a Trademark license that permits the filmmakers’ use of the Bond Mark in their films. The Bond Mark is also registered for a host of other goods and services from laundry detergents to briefcases.
The James Bond movie franchise has now fallen into disfavor with advocates for ending appearance-related discrimination who note that the filmmakers persist in trafficking a dangerous movie trope that villainies facial disfigurement and “otherness”.
In this article, I examine how the filmmakers’ exercise of a cinematic device could impact the economic integrity and viability of the Bond Mark.
The Bond Movies use of the Disfigurement Trope
Following the release of “No Time To Die”, commentators pointed out and criticized the franchise’s over-reliance on the disfigurement trope to identify its villains. They note that most Bond villains have facial scars/disfigurement that serve no real purpose in the story other than to identify them as villains. The latest Bond film has three villains, all with disfigurements that, critics argue, are not necessary to the film’s narrative.
Michael G. Wilson, one of two producers of the 2021 Bond movie has defended the film’s decision: “It’s very much a Fleming device that he uses throughout the stories… He had that as part of the characters that he devised.”
It is true that Fleming, the creator of the James Bond character and writer of the James Bond books, upon which the films are based, wrote some of his characters with facial scars. However, it should be noted that Fleming also described Bond as bearing a scar on his cheek. Yet, in all the movies released as adaptations of the book, Bond has been depicted without visible facial scars. Why, then, was it necessary to adhere to Fleming’s vision for the villains? Disfigurement clearly serves as a marker of villainy in the Bond series.
In light of the backlash that this cinematic device has engendered, we must consider how the filmmakers’ actions as licensees of the Bond Mark threaten the continued existence of the mark and the rights of its co-licensees.
Trademark Licensing and Tarnishment
As a preliminary matter, it is worth mentioning that marks that recall or promote subject matter that are scandalous, obscene, or immoral are considered “Prohibited Marks” and excluded from Trademark registrability. It is also worth stating that, per the Canadian Intellectual Property Office’s Trademarks Examination Manual, “A scandalous word or design is one which is offensive to the public or individual sense of propriety or morality or is a slur on nationality and is generally regarded as offensive.”
A combined reading of the above provisions suggests that where a word, in the public’s understanding, encourages the villainization of persons living with disability or disfigurement, then such a mark will be considered scandalous and inherently unregistrable. But what happens if the discriminatory connotation is formed after the mark is registered, as with the Bond Mark? This is where the concept of Trademark Tarnishment comes in.
Trademark Tarnishment refers to the use of a mark in a way that harms the reputation/viability of the trademark and the goodwill associated with the mark. While Tarnishment accusations are typically brought against trademark infringers (i.e., unauthorized users), but nothing precludes the doctrine from being extended to licensed users. In fact, I would argue that implicit in a license to use a Trademark is the condition that such use will not diminish the value of – that is to say, tarnish – the mark.
The Movies’ and Tarnishment of The Bond Mark
The makers of Bond movies continue to engender real-world harm to persons living with disabilities and disfigurement. Their actions in this regard associate the Bond Mark with discrimination against a vulnerable group, and this association has economic consequences for the mark’s continued viability.
When we consider that trademarks commodify a brand’s goodwill, which allows the brand to trade with its reputation, and that the brand’s value associated rises or diminishes with public perception, we can appreciate the implications of the Tarnishment of the Bond Mark. The Bond filmmakers are one of several licensees that have paid for the license to associate the reputation of the Bond Mark with their products and services. As such, one licensee’s Tarnishment of the mark has significant business and economic implications for the licensor’s contractual arrangement with its other licensees.
Conclusion
Clearly, the fear of trademark tarnishment does not dissuade the Bond filmmakers from continuing the harm that the Disfigurement-villainy trope causes to vulnerable persons. Perhaps they will be motivated to change artistic directions if the economic implications of their actions are laid bare.
Here, I set the question to them: “Is the Villainous Portrayal of Disfigurement really worth the price of the “James Bond 007” trademark?”