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People are filing trademark applications to “own” the swastika and the n-word

The Slants’s Supreme Court ruling is opening a Pandora’s box on trademarking derogatory language.

There has been an increase in applications to trademark derogatory language since June.
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Nine applications to register derogatory words and symbols have been filed with the US Patent and Trademark Office following a US Supreme Court ruling in June that barring such trademarks was unconstitutional.

The n-word and swastikas are among the culturally charged imagery and language that both individuals and companies are attempting to register for products, including energy drinks, sweatshirts, and fragrances, Reuters reports.

In all, seven applications for versions of the n-word have been filed with the Patent and Trademark office since June 19, along with an application that included a Chinese slur and the emblem of the German Nazi Party.

Federal registration protects parties against the unauthorized use of their trademarked brands. In these cases, that would include the use of or profit from privately owned, discriminatory language. There are stipulations to getting and keeping a registered trademark, however.

If an applicant has never used the trademark prior to registering, they have six months from when the Patent and Trademark Office preliminarily grants the application to offer evidence of actual use. Once you become the owner of a federally registered trademark, you are required to continuously use it. Failing to do so after three years of non-use — and no proven intent to resume — results in the determination that your trademark has been abandoned.

Before the trademark is even reviewed, the application process requires registrants to ensure the trademark is not “ornamental.”

So, for example, it someone “decides to put drawings of buildings all over one particular pair of sneakers because it looks good, that is ornamental and not a trademark use and doesn’t give exclusive rights to use buildings on sneakers.” Brad R. Newberg, an intellectual property partner at the law firm of McGuireWoods LLP, told Vox in an email.

All applicants for registered trademarks must also prove there’s a relationship between the brand, the brand’s product and consumers’ connection between the two. An image or word’s wide use by others can bar a registration application from being approved.

“If a design or word is widely used by others (as the swastika is), the USPTO is likely to refuse to issue a trademark registration for that mark, since it won't be seen by consumers as source identifying,” Aaron Johnson, a trademark attorney with Lewis Roca Rothgerber Christie LLP, told Vox in an email.

Prior to the June 19 ruling, the office had regularly dismissed applications “which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute,” under Section 2(a) of the Trademark Act of 1946. Also known as the Lanham Act, the law regulates trademarks, service marks, and unfair competition.

On June 19, that practice was officially upended with the case of Matal v. Tam. In a unanimous decision, all eight Supreme Court justices (Justice Neil Gorsuch did not take part in the vote) agreed that the disparagement provision “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The case involved an Asian-American band from Portland, Oregon, that sought to trademark the band’s name, which is typically considered an Asian slur. The members had both their application and their appeal denied by the US Patent and Trademark Office and the US Trademark Trial and Appeal Board (TTAB), respectively.

In a New York Times op-ed, the Slants frontman Simon Tam argued that their case was about reclaiming the power of a disparaging word. “We had called ourselves the Slants as a way of seizing control of a racial slur, turning it on its head and draining its venom,” Tam wrote.

While other groups that used a similar argument in the past had their applications rejected, organizations such as Dykes on Bikes had their applications accepted on the grounds that their slur was no longer deemed offensive by the community.

The Slants’ victory sparked a national debate over the ownership of language and resulted in the Department of Justice ceding in a case brought by Washington, DC’s football team over trademark registration. In 2014, Washington had its trademark protection canceled by the Patent and Trademark Office on the basis that both the name and the logo were disparaging. The Washington team lost appeals over the registration with both the federal TTAB and US District Judge Gerald Bruce Lee, before suing the federal government and five Native Americans over the constitutionality of the Lanham Act’s disparagement clause. On June 28, the Department of Justice submitted a letter in federal court, citing the recent Supreme Court decision.

Attorney and trademark expert David Bell told Reuters that the Supreme Court’s ruling and this latest barrage of trademark applications are the opening of Pandora’s box.

“We’re now opening the door, chipping away at what’s acceptable under cultural norms,” he said. “I think it could be a slippery slope, where you get more people and companies thinking, ‘This is okay.’”

While the disparagement section of the Lanham Act may have prevented some from federally registering derogatory content, Johnson notes that the act never stopped individuals from being able to use offensive material as a trademark.

“A trademark is just a word, logo, or other device that a company [or] individual uses to indicate the source of their goods [or] services,” Johnson said. “In general, a person can use a word as [their] trademark, even without obtaining a federal registration for that mark. ... The lack of a trademark registration never prohibited anyone from selling clothes with swastikas on them, or using a swastika as their logo.”

Jennifer Guiliano, an assistant professor of history and author of Indian Spectacle: College Mascots and the Anxiety of Modern America, says that although the Slants case has set a precedent, its context is specific.

“The people holding the trademark are people of that community, of that identity. ... That allows them a measure of cultural authority,” she told Vox.

That, she surmises, could open doors to a legal battle down the line.

“I think it’s really important for people to recognize that these types of decisions are not permanent,” Guiliano continued. “These types of legal decisions get continually relitigated and re-challenged in the court system. For me, [the Slants case] is just another moment and stage.”

NPR’s Ailsa Chang spoke to two individuals attempting to register trademarks for derogatory words or images. Chang uncovered that their intentions mirrored sentiments similar to that of Tam and Guiliano: they desired to trademark the word to prevent others from using it negatively.

According to justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, as well as, now, the PTO, that intent doesn’t distinguish one applicant from another when dealing with registered trademarks. Intent, which the disparagement clause attempted to in part address, is essentially the “essence of viewpoint discrimination” and is neither endorsed nor protected by the constitution.

So for now, the law doesn’t care whether your trademark aims to empower or harm, and as NPR’s Robert Smith also notes, “good intentions” won’t wipe away the cultural, emotional, and historical significance behind words and images you are required to continuously use.

“Even if you’re doing it for good, even if you’re putting it on something — even if no one buys it, the very fact of its existence seems wrong.”

Trademarks are often not immediately decided upon and can sometimes take years to approve or deny. On June 26, the Patent and Trademark Office told staff the disparagement provision was no longer usable as a basis for rejecting a trademark, but it remains unclear how immediately any of these recent applications will be addressed or if any will even be approved.

Correction: An earlier version of this story’s headline used the word copyright instead of trademark. Trademarking and copyright both protect intellectual property, but copyright covers creative works while trademarking covers things like business names, slogans, and logos.

Update: This piece was updated to clarify whether you are required to sell goods using a trademark, as well as the scope and limitations of trademarks and trademark registration.