People are rushing to file trademark applications for offensive terms after a Supreme Court ruling made them legal. It’s been described as a “slippery slope,” the “tip of the iceberg,” and an “intellectual property gold rush,” with the implication that bigots and hucksters will profit.
So far, the applications appear to be either invalid attempts to make a political statement, or genuine commercial ventures by people from marginalized groups hoping to reclaim slurs.
Trademarks are granted so that sellers can distinguish their products from others. That means the mark has to be distinctive, and it has to be used in commerce or planned for use in commerce.
No one was prevented from printing T-shirts with the n-word, c-word, and other slurs before the ruling; they just couldn’t assert ownership over those phrases. The most visible effect of the decision is that the Washington Redskins can now defend its trademark and prosecute knock-off merchandise, despite the fact that the team’s name is a slur for Native Americans. It also means that it will theoretically be easier for other companies to make money off products with racist or sexist designs if they can assert ownership over the intellectual property.
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There are 10 applications for trademarks with variations on the n-word as of this writing. At least three of them, as well as an application for an unstylized swastika, appear to have been made in bad faith.
The swastika application, which says the mark is intended for use on “Fabrics that may or may not have printed patterns and designs thereon for use in textile applications, namely, the manufacture of apparel, upholstery, signage, flags, banners and wallpaper,” may not be valid because the symbol is already too well-known to establish a brand around it, attorneys told NPR and Forward.
Meanwhile Charles Duan, an attorney with the intellectual property non-profit Public Knowledge, said most of the n-word applications appear to fail the commerce test.
“The problem they are going to run into is that they’re not trademarks, since they don’t serve to associate a name with a product,” he said in an email. “The main thing being that you have to look to how the mark is perceived by the public. If I saw a beer can in the supermarket with the n-word on it, I’d think that the beer maker was trying to piss people off, not help me find more of the brand of beer.”
“These aren’t trademarks, because they’re not for a product. They’re just for shits and giggles.”
The swastika application and three of the n-word applications were filed by a patent attorney, Steven Maynard, who used to be an examiner for USPTO. However, Duan thinks Maynard’s applications will be rejected since Maynard told NPR that he wanted the trademark solely to prevent others from getting it. Maynard, who filed under the entity Snowflake Enterprises, LLC, has said he did it as a defensive move against racists.
Meredith Rose, another attorney for Public Knowledge, also believes some of the applications were made in bad faith and won’t be granted.
Trademarks are supposed to act like a signpost, identifying all the products that come from the same brand, she said. “These aren't trademarks, because they're not for a product. They're just for shits and giggles, saying, ‘I want a trademark on this word’” she said.
The issue came to the Supreme Court because a band called The Slants — a reference to its four members’ Asian heritage — was denied a trademark. The band wanted to reappropriate the slur, arguing that the denial was a violation of free speech.
At least two of the 10 applications filed for variations on the n-word came from black people and seem to be in the same spirit. A musical artist in the Bronx filed to trademark his producer name, Niggod, attaching screenshots of an Instagram account, website, and SoundCloud page to his application. In the past, he might have been prevented from registering the name.
In 2007, a trademark application was filed by a woman who wanted to use the word “cunt” for her website. It was rejected with a lengthy note from the USPTO, citing a definition from Encarta.com and asserting that “The fact that profane words may be uttered more freely in contemporary American society than was done in the past does not render such words any less profane.”
Another company, Business Moves Consulting, is a black-owned online consulting business attempting to register the mark. “I'm confident that we will receive approval from the USPTO for the Nigga™ mark,” said Curtis Bordenave, who filed the application. “Nigga mark is nothing like the swastika symbol which [an] attorney is attempting to register,” he said, referring to Maynard. “I could have advised him better.”
Bordenave plans to sell T-shirts that have a positive message along with “a short DVD” that explains the brand for $32, he said.
“I think the bigger issue is that [an] African American company has acquired the rights to a word that for so long was used against us,” he said, “and now we will own it.”
None of these applications have been approved yet. Filing fees start at $225 and the process usually takes months.
