After SCOTUS Ruling, Some Rush To Trademark Racially Charged Terms, Symbols

Image courtesy of afagen

The same day that the Supreme Court ruled that it’s unconstitutional for the Patent and Trademark Office to ban racially charged or offensive trademarks, some people jumped at the chance to get trademark protection on a variety of products — from apparel to beer — bearing brand names and symbols that range from highly questionable to inflammatory.

A quick search of the USPTO’s trademark database turns up a slew of recently filed, but not yet approved, trademark applications for racial slurs, primarily focusing on variations on the N-word.

There are also some pending attempts to register graphic symbols, like swastikas, associated with racism and hate-mongering.

Many of these trademark applications were filed on, or within a few days of, June 19, 2017. That’s the day that the Supreme Court ruled against the statutory ban on federal registration of offensive or disparaging marks.

Some Background

Previously, federal law prohibited the USPTO from registering trademarks that “disparage… persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

But then Oregon-based rock group The Slants, whose members are all Asian-American, sought to trademark their name in order to protect themselves from fake merchandise.

While they acknowledged that the name is sometimes used as an anti-Asian slur, they’d hoped to reclaim it from racists who’d use it as an insult.

USPTO denied that application, and the band sued, arguing that the government’s prohibition on disparaging trademarks is a violation of the First Amendment.

The D.C. Circuit Court of Appeals agreed with USPTO in Dec. 2015, prompting the band to petition SCOTUS to hear the case. The Supremes decided to hear their appeal, and ultimately ruled unanimously last month that the government is violating the First Amendment by barring the registration of disparaging trademarks.

“It offends a bedrock First Amendment principle,” writes Justice Breyer in the court’s opinion. “Speech may not be banned on the ground that it expresses ideas that offend.”

Now What?

Like the rock band The Slants had intended when they first sought to trademark their name, there are those who may try to reclaim these terms and symbols.

For example, one man whose parents are Taiwanese submitted a trademark application for an anti-Chinese slur. He explains to Reuters that he was called that word as a child and wants to take it back for himself. His plan? Selling T-shirts featuring the word and generating news coverage for his company.

In 2013, someone else attempted to register a similar trademark using the same slur but with an obvious pride element. However, the USPTO ultimately rejected that application.

Then there’s the other side of the coin: Will this open up the door to energy drinks branded with racial slurs will appear in grocery store aisles? Perhaps not, attorney David Bell, a trademark expert, noted to Reuters.

“Might the (Ku Klux Klan) or neo-Nazi groups start doing it more? They might, but I don’t think trademark filings are high on their radar,” he said.

However, as the president of Asian Americans Advancing Justice points out to Reuters, though there are people with honest intentions, some applicants might just be trying to make a buck or spread a racist message.

That question was brought up during a Reuters interview with the founder of a company called Snowflake Enterprises, which has filed at least three trademark applications for the term “n—a” on apparel, hard liquor, beer, and other products, and is also attempting to register a trademark for the swastika. The owner of the company claims that he’s not a racist but that he believes that the more an offensive word is used, the weaker it becomes.

However, some question the true motives of these trademark applicants. An unregistered or rejected trademark can still be used on a product; it just enjoys fewer protections against copycat marks. So there was nothing, aside from possibly good taste and decorum, preventing anyone from selling the products that these companies now wish to put on the market. Successfully registering the trademark would just give these companies more control over who else could use the same term.

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