Part of the Lanham Act, the primary federal statute for trademarks, has been struck down by the US Court of Appeals. The Trademark Trials and Appeal Board initially denied the band a trademark registration based on the, obviously, racist implication of the band’s name. But, the appeals court for the Federal Circuit,
sitting en banc, has struck down not just the USPTO decision about The Slants, but the entire section of the Lanham Act that bars “disparaging” trademarks.
The USPTO had a ridiculous and incomprehensible control over what did and did not get accepted for a trademark application. For example, arstechnica points out that “[t]he PTO denied the mark HAVE YOU HEARD SATAN IS A REPUBLICAN because it disparaged the Republican Party but didn’t find the mark THE DEVIL IS A DEMOCRAT disparaging.”
Strictly, there is a difference between those two statements, but practically, as a defamation of brand, there is really no substantial difference. Also, to be facetious, I’d say both statements are true. This case shows that there exists inconsistencies in the decisions made by the USPTO–inconsistencies that show social/political bias. But, this is really besides the point since the USPTO is violating the First Amendment by restricting any trademark based on disparaging others.
There are times when a trademark should be restricted based on a name, and removing merely the restriction against arguably vilifying terms/phrases will in no way create huge waves in the IP community. What this removal does, is allow the public and markets to decide when something should be removed from the market (economically) because of a repugnant name.
Former Daily Show host Jon Stewart called for this kind of market reaction back in January concerning anti-Semite comedian Dieudonné M’bala M’bala (Jan. 14, Ep. 2582). This was shortly after the Charlie Hebdo shooting, which feels a lot closer than almost a full year back, and when the French government arrested the hate-filled comedian for a social media post that viewed the attacks positively. Stewart talks about a tour the comedian was doing that was canceled by the government:
So, French authorities had to cancel his tour because he does an anti-Semitic routine…Shouldn’t that tour have been canceled because no one was buying tickets?
I admit it’s tenuous to trust people and the market with things like this–especially when the market is imperfectly informed. But, it is in the government’s jurisdiction to provide information, and not to restrict ideas.
As an example where the market did work, you may remember in the aftermath of the murder of Trayvon Martin one particularly entrepreneurial person printed and sold gun range targets of, what was obviously supposed to be, Trayvon Martin. This perpetuates the stereotype that all black people are not only criminals, but criminals that should be shot with little or no provocation–defaming a whole race. While the posters did sell out within two days of availability, they cannot be found now because of the loud backlash against the insensitive range targets. The market was briefly amused, but quickly found itself disgusted–all without the help of government workers preventing the sales.
Going back to the USPTO, another large ongoing case concerning defamatory trademarks is in regards to the Washington Redskins. As noble as it is to get the NFL team to change their name, taking the trademark route was perhaps not the most ideal way to win the cause. As a defamation case, the plaintiffs argue that the Redskins’ name hurts the reputation of the Native American peoples, and perpetuates the Othering stereotypes inherent to the dehumanizing slur. But, the NFL team could turn this around by claiming the popularity, teamwork, and prowess of the team and players reflects a nobility to be admired. They could also point to the name as a positive way to remember the Native American peoples and their struggles against the many forms of racism they have, and do, endure and struggle against. Instead of this battle, the plaintiffs could have hurt the market with boycotts, petitions, and generally making it unprofitable for the team and NFL to keep the current name.
Remember, too, that hate speech in the United States is not illegal–until such time as there is reasonable expectation that the speech is inciting or threatening action. The “imminent danger” test was set by the Supreme Court in 1969, saying
The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.
Therefore, the USPTO would still prevent trademarks under such names as, “Kill All [group X],” among their other standards, but, not, as The Slants imply, “Asians’ Eyes Are Slanted.”
In any case, this was a win for free speech, and therefore the world. Now we can look forward to all the trademarks based on quotes from Glen Beck.
Ken Sawdon is a Footage Curation and Metadata Specialist at Dissolve Ltd., a startup stock footage and photo company. He is a recent MLIS graduate from the University of Alberta, where his activities included co-chair of the Forum for Information Professionals student conference and community activist and blogger for the Future Librarians for Intellectual Freedom. He has been a volunteer librarian for the Aero Space Museum of Calgary as well as a Collections Assistant at Fort Calgary. Connect with him at @kainous on Twitter.