Offensive Trademark Requests? So What?

A month ago, the U.S. Supreme Court ruled unanimously that a federal law prohibiting registration of trademarks that “may disparage … persons, living or dead, institutions, beliefs or national symbols” violates the First Amendment. Liberal media wasted no time in finding baleful consequences of the ruling. Reuters writes: “Supreme Court ruling leads to offensive trademark requests.”

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.
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If the applicants follow through, such products as energy drinks, sweatshirts and fragrances could be branded with racial slurs.

The number of offensive trademark applications submitted so far–“at least nine”–is tiny; the PTO processes over 300,000 such applications annually. Moreover, these applications apparently come from people who think that “saturating the market with such epithets can rob them of their racist connotations,” and thereby “turn hate into hope.”

Be that as it may, the average reader is likely to think that the Court’s ruling has legalized what was previously prohibited, the use of offensive names for products. No: it has always been legal to name a product, say, “N-word ice cream.” The Court’s ruling means that if you name your product “N-word ice cream,” you can trademark that name and a competitor can’t steal business from you by using the same name.

Of course, no one has ever marketed a product called “N-word ice cream,” and no one ever will, for obvious reasons. But there are closer cases. The action that wound up in the Supreme Court was brought by an Asian-American band called the Slants. The Supreme Court’s ruling means that another band can’t create confusion in the marketplace by selling records under the same name.

Is the Slants a good name for an Asian-American band? I have no idea, but that is up to them, not me. If the name is such a draw that another band wants to steal it, the band is as deserving of legal protection as anyone else.

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