Law professor Jonathan Turley questions the U.S. Patent Office's decision to rescind trademark protection for the Washington Redskins. While the move pleased many activists and politicians, Turley asks in a Washington Post article Sunday, is such social activism on the part of a federal agency really a good idea?
"As federal agencies have grown in size and scope, they have increasingly viewed their regulatory functions as powers to reward or punish citizens and groups," Turley writes. "There is an obvious problem when the sanctioning of free exercise of religion or speech becomes a matter of discretionary agency action."
In Turley's view, some trademarks are protected not because of any inherent free speech rights, but simply because no one has yet challenged them. "Currently trademarked slogans such as 'Uppity Negro' and 'You Can’t Make A Housewife Out Of A Whore' could lose their protections," he writes, "despite the social and political meaning they hold for their creators."
That's an understatement. It is, in fact, easy to find a multitude of potentially problematic trademarks. Indeed, a stroll through the Patent Office's Trademark Electronic Search System is a lesson in the remarkable diversity of trademark-protected names -- names that some Americans might well find offensive.
For example, there are registered trademarks that could easily offend some women. Start with "Crazy Bitch" (a barbecue sauce registered in August 2013). Or "That Bitch is Nuts" (a roasted nuts snack registered in October 2013). Or "Bitches of South Beach" (a reality show title registered in November 2012). That's just three; there are plenty of others.
Or take "Wine Slut" (a clothing name registered in January 2009). Or "S.L.U.T.S" (a thermal cup brand registered in August 2008). Or "The Slutcracker" (a dance performance registered in July 2009).
Or "Whore Couture" (a clothing label registered in December 2007). Or "Whoremoans" (clothing registered in September 2008). Or "Food Whore" (clothing registered in June 2014). There are lots of others.
On the racial front, the Patent Office seems to have done away with any titles containing variants of the N-word, although people still (unsuccessfully) file applications for them. To see how the process works for race-related terms, look at the 2013 application from an aspiring businessman in Alabama who proposed to sell bumper stickers with the words CREEPY ASS CRACKA on them. (He was apparently inspired by the use of the phrase in the Trayvon Martin case.) Although there are T-shirts and other wares available with the phrase, the Patent Office denied trademark protection, with the following explanation:
REFUSAL -- MARK IS DISPARAGING
Registration is refused because the applied-for mark consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols. …
The following two factors are considered when determining whether matter may be disparaging under Trademark Act Section 2(a):
(1) What is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods and/or services, and the manner in which the mark is used in the marketplace in connection with the goods and/or services.
(2) If that meaning is found to refer to identifiable persons, institutions, beliefs, or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.
A year later, in 2014, a Georgia man who wanted to make shirts with the related CREEPY ASS CRACKER on them was refused trademark protection because the proposal "contain[ed] scandalous matter." Citing a number of court cases, the Office ruled that a trademark "is scandalous when the evidence demonstrates that a substantial composite of the general public (although not necessarily a majority) would consider the mark to be scandalous in the context of contemporary attitudes and the relevant marketplace." The ruling continued:
Applicant seeks registration of the mark CREEPY ASS CRACKER for clothing items. The attached evidence from the American Heritage Dictionary of the English Language shows the wording CRACKER is an offensive term “used as a disparaging term for a poor white person of the rural, especially southeast United States” or is an offensive term “used as a disparaging term for a white person." In addition, the Compact Oxford English Dictionary states that the term CRACKER is offensive and is “another term for poor white." Given these definitions, the Office must conclude the term CRACKER in the mark is scandalous because a substantial composite of the general public would consider the wording CRACKER to be offensive in the context of contemporary attitudes and the relevant marketplace. Accordingly, the proposed mark is refused registration under Section 2(a) of the Trademark Act.
So where does that leave the Washington Redskins? Apparently out of luck, if the Patent Office's interpretation of the law stands. In addition, many other trademarks could be in danger — watch out, Crazy Bitch Barbecue Sauce — if the Patent Office evaluates them in the same light it has applied to some other cases. And a look at even a small number of cases shows the Office has enormous leeway in deciding what passes muster and what doesn't.
Which is why Turley is calling for a different approach. "What is needed is a new law returning these agencies to their core regulatory responsibilities and requiring speech neutrality in enforcement," he writes. "We do not need faceless federal officials to become arbiters of our social controversies."