The Curious Case of Trademark Requests for Racial Slurs

According to a recent report on Reuters, there has been a tiny yet noticeable blip in trademark requests sent to the federal government to register racists words and slogans for products.

The sudden drive to file paperwork to trademark some racial slurs comes in the wake of a June Supreme Court decision, Matal v. Tam. In that case, the Court unanimously ruled that the U.S. Patent and Trademark Office (PTO) cannot withhold legal protections for any trademarks viewed as disparaging. The case was filed by The Slants, an Asian American dance music band for which the PTO denied a trademark in 2013.

In the past, the PTO had rejected similar trademark applications with the logic that they were disparaging or offensive. But in this landmark case, The Slants and their legal team argued that denying patent protection was a free speech violation. The Supreme Court agreed. “Contrary to the Government’s contention, trademarks are private” wrote Justice Samuel Alito in explaining the Court’s opinion.

The band believed they had the right to embrace a name long used as a pejorative term and therefore, simply own it. “We believe in the deliberate disarmament of toxic language and symbols,” the band wrote in a blog post celebrating their legal victory.

At issue was section 2(a) of the Lanham Act, which for over 70 years has been the primary legislation governing trademark law in the U.S. Lawmakers wrote that section of the law to avoid the chance that any product name or slogan “disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” And in a legal brief, the Trump Administration argued that the Supreme Court should keep that provision, arguing that if it were dismissed, the door would be opento white supremacists and racists trademarking any offensive term.

But as Reuters’ Andrew Chung has pointed out, the opposite has actually been occurring within the halls and email boxes of the PTO.

Chung interviewed a Northern Virginia branding consultant who has filed applications for one client who aims to use a racial slur on clothing and alcoholic beverages in order to transform that offensive word into a brand. The argument, according to Charles Maynard, is to flood the market with this and similar terms, hence diminishing their racist and hateful connotations.

Matal v. Tam was widely seen as a victory for the professional football team Washington Redskins, the nickname of which is viewed by some critics as a racist slur directed at Native Americans. The team has been in the midst of controversy for years, and the PTO yanked its trademark in 2014 – currently, that litigation is pending in a federal appeals court. The likelihood that the Redskins will prevail in court was one reason why some citizens are worried about the trademarks the PTO may be forced to register in the coming years and months. “It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks,” said Lisa Simpson, a New York-based intellectual property lawyer, in a June interview with the Washington Post.

For The Slants, any such risk is outweighed by the fact that its members felt it was not up to one attorney to make a decision affecting self-expression. “There will always be villainous characters in a free society,” said the band’s founder, Simon Tam, “but we cannot be so blinded in our desire to punish them that we are willing to bear the cost of that cost on the backs of the marginalized.”

Do not look for too many companies wading anywhere near this controversy, as frank discussions about racial and ethnic identity has proven to be a scalding experience in the past. Two years ago, Starbucks waded into the “black lives matter” discussion by launching a “Race Together” initiative. Many observers felt the coffee giant’s attempt to spark racial dialogue ended in an epic failure.

Image credit: The Slants