July 2017. In the last three weeks, a remarkably high number of new applications for obscene and racist trademarks have been received at the US Patent and Trademarks Office. Cock Sucker, Nigger Please, Crackhead Jesus and Dicks by Mail, to name just a few.
The reason for this flood of applications for offensive names is the ruling of 19 June by the Supreme Court, the highest American court, in the Matal v Tam case. The Supreme Court found that ‘disparaging’ trademarks can no longer be rejected. The appeal before the Supreme Court was brought by Simon Tam, front man of the Asian-American dance-rock band The Slants.
‘The Slants’ rejected
When Tam applied for trademark protection for the band name The Slants in 2011, the American Patents and Trademarks Office denied the application because of its derogatory meaning. Slant refers to the position of the eyes of people of Asian origin and is often used in a pejorative or disparaging manner. Because US trademark law provides that a trademark that may be disparaging to a certain group of people cannot be registered, the Patents and Trademark Office refused to register ‘The Slants’.
Tam filed an appeal and then started on a long road via various courts. Although the courts found against him in the first instance, Tam ultimately won on appeal in June of this year. The Supreme Court held that the 70-year-old provision that pejorative or disparaging trademarks must be rejected because it violates the freedom of speech clause of the US First Amendment and is therefore unconstitutional.
Obscene trademarks too?
Although the ‘Slants’ ruling in principle only applies for disparaging trademarks, it is expected to also have consequences for pejorative or obscene trademarks. That explains the flood of obscenity and racial slurs in the applications of recent weeks.
So is Redskins OK now?
The case will presumably also lead to a new turn in the conflict, which has been running for years, over the ‘Redskins’ trademark. An application to register this mark by the Washington Redskins football team was also refused on the grounds that it was disparaging and pejorative. On the basis of the Slants ruling, the registration of Redskins should presumably now also be permitted.
Obscenities on hold
In the meantime, a large number of applications received by the American Patents and Trademarks Office in the past year are now ‘on hold’, all pending the Supreme Court decision in the Slants case. In light of that ruling , the Trademarks Office will now presumably also have to reconsider these applications, ranging from Camel Toe Camouflage to Anal Overdose.
Above: Examples of trademark applications ‘on hold’. Source Ed Timberlake on Instagram
This article was previously published in the newspaper De Volkskrant