Back in June we received the long awaited ruling from the Supreme Court over the trademark issue by the rock band, The Slants. Denying them a trademark to protect their intellectual property based on the offensive nature of their name was a violation of the First Amendment which is supposed to protect offensive speech. Many saw this as having implications for the Washington Redskins as well.
But as with all things, the law of unintended consequences is in play. Once the decision was made, some aspiring entrepeneurs were quick out of the gate to begin attempting other trademark applications. Notable among them… a swastika and the N-Word. (Reuters)
A small group of companies and individuals are looking to register racially charged words and symbols for their products, including the N-word and a swastika, based on a U.S. Supreme Court decision on trademarks last month.
At least nine such applications have been filed with the U.S. Patent and Trademark Office (PTO) since the unanimous June 19 ruling throwing out a federal law prohibiting disparaging trademarks. All are pending.
In the past, the agency generally rejected similar filings because they included material that denigrated an identifiable group. But the court said the law violated free speech rights under the U.S. Constitution.
Reading some of the comments that Reuters gathered from various sources after this news came out, I’m not sure that everyone is fully up to speed on what the decision actually meant. At no point was anyone in the previous lawsuit arguing that the government could or should prevent the Redskins or the Slants from using those names. They were saying that the government could refuse to allow them trademarks, potentially costing them money.
The article raises concerns that we might begin seeing products, “branded with racial slurs” and quotes one Trademark expert as saying the decision was, “chipping away at what’s acceptable under cultural norms.” But that’s not at the heart of the trademark question at all. I know for a fact that I’ve seen shirts with the N-word on them around here (worn by black youths) and I’m nearly positive that I could come up with some products already on the market with swastikas on them. (CAUTION: Click on that link at your own risk and you probably don’t want it on your browser history at work.)
The question isn’t whether you can sell products with those (and other) offensive words or symbols on them. You clearly can. It’s just a matter of whether you can claim exclusive ownership of those markings and prevent others from making money off of them. And in these specific cases I have to wonder just how open the government is about handing out trademarks to begin with. It’s 2017. The N-word dates back to at least the mid to late 1700s from what I see on a quick search. And the swastika? One science program I watched recently was showing ruins in India with swastikas carved into them which date back thousands of years. Can someone just come along today and claim the copyright on that because nobody was able to do so before?
At least in the case of The Slants they have a name and logo that goes with it rather than just the word “slant.” Similarly, the Redskins are actually “The Washington Redskins” aren’t they? I mean, if I wanted to print a t-shirt with a picture of some Native Americans fighting a bunch of cowboys and used the word “redskins” on it, could the football team sue me? (Sure, I’d probably be beaten to a pulp for creating such a glaringly offensive shirt in that context, but we’re focusing on the trademark issue here.)
Either way, we’ll keep an eye on this story going forward. If somebody successfully obtains the trademark on the swastika I’d love to know how they pulled that off.