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Free Minds & Free Markets

Offensive Trademarks Are Free Speech

The Supreme Court should overturn the federal ban on registration of "disparaging" trademarks.

In 2004 the U.S. Patent and Trademark Office agreed to register Heeb as the name of a magazine covering Jewish culture. Four years later, the PTO refused to register Heeb as the name of a clothing line conceived by the magazine's publishers, because the term is "a highly disparaging reference to the Jewish people."

Such puzzling inconsistency is par for the course at the PTO, which since 1946 has been charged with blocking registration of trademarks that "may disparage...persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." A case the Supreme Court will hear today could put an end to that vain, vague, and highly subjective enterprise, which sacrifices freedom of speech on the altar of political correctness.

The case involves an Asian-American dance rock band called The Slants, a name that self-consciously repurposes a racial slur. In 2011 the band's founder, Simon Tam, tried to register the name but was rejected by a PTO examiner who deemed it disparaging to "persons of Asian descent."

An administrative appeals board affirmed that decision, even while conceding that the band's name was "an attempt not to disparage, but rather to wrest 'ownership' of the term from those who might use it with the intent to disparage." The board said "the fact that applicant has good intentions underlying the use of the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable."

In 2015 a federal appeals court agreed that Tam "may offend members of his community with his use of the mark" but noted that "the First Amendment protects even hurtful speech." The court ruled that the ban on registration of disparaging trademarks amounts to viewpoint-based speech regulation, which the Supreme Court has said is constitutional only if it is narrowly tailored to serve a compelling government interest. The interest in this case—protecting the feelings of people who might be offended by an outré trademark—does not even qualify as legitimate, let alone compelling.

The PTO maintains that it's not really regulating speech, since Tam is free to call his band whatever he wants. But denying him the trademark-protecting benefits of registration clearly imposes a burden on his speech, analogous to denying copyright registration for a book that bothers a bureaucrat.

The PTO also argues that trademark registration should be viewed as government speech, similar to messages on license plates. But as the Cato Institute notes in a friend-of-the-court brief (which was joined by the Reason Foundation, publisher of this website), that contention is pretty implausible when the list of registered trademarks "includes such hallowed brands as 'Capitalism Sucks Donkey Balls' and 'Take Yo Panties Off.'"

Those examples also appear in a brief filed by the corporate owner of the Washington Redskins, which is engaged in its own legal battle over an allegedly disparaging trademark. The brief lists hundreds of arguably disparaging registered trademarks, including band names such as N.W.A., White Trash Cowboys, Whores From Hell, Cholos on Acid, The Pricks, Barenaked Ladies, and The Roast Beef Curtains.

Since disparagement is in the eye of the beholder, registration decisions vary with the moods and sensibilities of the PTO's examiners. It is therefore not surprising that "the PTO's record of trademark registrations and denials often appears arbitrary and is rife with inconsistency," as the appeals court found.

Among other examples, the court noted that "the PTO denied the mark HAVE YOU HEARD SATAN IS A REPUBLICAN because it disparaged the Republican Party…but did not find the mark THE DEVIL IS A DEMOCRAT disparaging." The PTO "registered the mark FAGDOG three times and refused it twice."

Uncertainty about the PTO's decisions has a chilling effect on applicants' choices, encouraging them to steer wide of trademarks that might be controversial. In fact, avoiding controversy is the whole idea of enforcing the rule against disparagement, and that goal is plainly inconsistent with freedom of speech.

© Copyright 2017 by Creators Syndicate Inc.

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  • BestUsedCarSales||

    "registered the mark FAGDOG three times and refused it twice."

    And all but one of those times were by me.

  • Inigo Montoya||

    I'm guessing all three times you got it through came after you said "Take Yo Panties Off" to the frustrated, lonely, and mousy-looking PTO bureaucrat.

  • ||

    No, no, clearly it is "TAKE YO PANTIES OFF, FAGDOG!!!!"

  • Dan S.||

    Perhaps briefs discussing this should be met with TAKE YO BRIEFS OFF.

  • SQRLSY One||

    Can I trademark "Guv Almighty Sucks My Dick" and "Speech Police Suck My Clit"?

    I need a ruling!!!

  • BestUsedCarSales||

    Sure, go for it I say.

  • Mark E Deardorff||

    Patents, Copyrights, and Trademarks are effective limits on free trade and, hence, theft. Get the State out of protecting businesses. It is the businessman's job to care for himself.

  • Mickey Rat||

    Trademark infringement is arguably fraud. To tesolve such disputes you are going to need a third party arbiter. Maybe government is not the only institution that can do such work, but it is an obvioys candidate for it.

  • ||

    Trademark infringement is arguably fraud. To tesolve such disputes you are going to need a third party arbiter. Maybe government is not the only institution that can do such work, but it is an obvioys candidate for it.

    I fail to see how either a) it's a proactive problem that needs to be solved or b) that the government, proactive or not, is really solving it.

    Case law or even legislation dictating how these cases are to be decided by rote? Sure. A policing organization with no real anti-fraud or criminally investigative capabilities? Sounds... uh... less than ideal.

  • ||

    [edit]
    Er, "it's a problem that needs to be proactively solved".
    [/edit]

  • Quixote||

    Disparagement can easily cause reputational damage, and hence poses a "problem that needs to be proactively solved." The Supreme Court has never held that libel cannot be criminalized; the UN Human Rights Commission has of course held as much, but we Americans know better. Indeed, the New York Court of Appeals has held that sending out Gmail "parody confessions" under someone's good name with the alleged intent to damage his reputation (as opposed to causing momentary discomfort) is a crime punishable by prison. Surely no one here would dare to defend the "First Amendment dissent" of a single, isolated judge in our nation's leading criminal "satire" case? See the documentation at:

    http://raphaelgolbtrial.wordpress.com/

  • Rasilio||

    Agreed on Patents (fully) and Copyrights (with provisions) but Trademarks are something different.

    Sure the government should not be "approving" trademarks beyond ensuring they are sufficiently unique enough that they would not be confused for someone else's but somebody absolutely needs to be a generally recognized and impartial body for registering them. Sure that body does not need to be the government and it would probably be better if it wasn't but having the government serve in the capacity of registration agency is hardly a meaningful restriction on liberty.

  • R C Dean||

    the government should not be "approving" trademarks beyond ensuring they are sufficiently unique enough that they would not be confused for someone else's

    Correct. This nonsense of vetting them for social acceptability needs to stop.

  • Dan S.||

    Nobody other than government can be the uniquely recognized registration agent. So either the government does it, or no one does, and cases of businesses or products pretending to be other businesses or products are judged on the specific facts of the case, without regard to whether marks were registered somewhere.

  • R C Dean||

    The government registers lots of property rights - real estate, vehicles, maybe others. Why not register intangible property rights specifically to protect them? Is establishing and protecting property rights not libertarian in some way?

  • ||

    This assumes you can effectively own an icon and/or that the government can effectively police it/them (and do so without abusing power), both of which are demonstrably untrue and by a variety of mechanisms all of which are protected by free speech.

  • R C Dean||

    This assumes you can effectively own an icon

    If I create it and use it, why not?

    and/or that the government can effectively police it/them (and do so without abusing power)

    Well, that's the rub. Even a private registry system will eventually need government recognition/backing, and I think it would also have to be a monopoly, otherwise you get competing claims from multiple registries.

  • ||

    Is establishing and protecting property rights not libertarian in some way?

    Also, as is repeatedly stated, the issue isn't government-generated property rights or anarchy! The issue is devoted government agency/registry for identifying and enforcing trademarks proactively vs. trying and adjudicating fraud/conflict as it occurs.

  • R C Dean||

    trying and adjudicating fraud/conflict as it occurs.

    I tend to think that retroactive litigation is an inferior option, due to the enormous cost and time delays.

  • Rasilio||

    ICANN would beg to differ...

    https://www.icann.org/

    Registration of internet domains is far more important than the registration of trademarks, the internet wouldn't even work if multiple sites shared the same domain names and yet here you have a private corporation that has since it's inception acted as an independent registrar of domains with no real problems

  • ||

    ICANN is hardly unique in this.

    All manner of other industries are rife with trade-to-common parlance that violates or voids trademark or copyright protection.

    Imagine wading into the firearms industry and saying only Winchester could legally produce .243, .300, .308, .30-30, etc. calibers and that anyone producing those calibers and/or labelled as Winchester rounds owed royalties to Winchester. Walk into any tattoo parlor in the country and they can tattoo a Nike Swoosh on your vagina and you can broadcast it across the internet without a dime of royalty to Nike.

    But, for some reason, Costco is loathe to bake a cake even remotely shaped like Spongebob Squarepants at any price, regardless of whether the Nickelodeon Corporation produces cakes shaped like Spongebob or not, because copyright.

  • R C Dean||

    Patents, Copyrights, and Trademarks are effective limits on free trade and, hence, theft.

    How establishing property rights in intangible property is a limit on free trade is an exercise for the reader.

    Unless property is theft, eh, Mark?

  • ||

    How establishing property rights in intangible property is a limit on free trade is an exercise for the reader.

    Because it doesn't protect the property, it punishes the enemy/unprotected. Nike owning the swoosh trademark doesn't tangibly improve the quality of the shoes/apparel or prevent the physical shoes from being stolen or destroyed. It's used to prevent fraudsters and even knowing cheapskates from exercising their private right to conduct transactions and/or speak freely with their symbols and their money; one of which is already a crime and the other of which falls between free trade and free speech.

  • R C Dean||

    Because it doesn't protect the property, it punishes the enemy/unprotected.

    Kind of like how tangible property rights don't actually protect the property in isolation, but only punish the enemy/unprotected via trespass and theft laws?

  • ||

    Kind of like how tangible property rights don't actually protect the property in isolation, but only punish the enemy/unprotected via trespass and theft laws?

    While still requiring proof of trespass and/or material loss in order to be enforced? Yeah.

    Otherwise, it would be like licensing women to go out and accuse men of sexual assault not just without regard to whether the men committed assault but without regard to if they were even capable of doing so. Since they can kinda do that anyway, and it's not really just, what's the point of the licenses? Are we really starved for brands and/or brand honesty?

  • Chipper Morning Wood||

    I smell a Kinsella lackey.

  • RabbitHead||

    I just wish they would stop letting people trademark statements like:

    "Americas favorite" this

    and

    "Worlds best" that.

    Because registering first makes it true, or exclusively yours?

  • ||

    Then it would be pronounced "choy-os".

  • mr simple||

    A delicious breakfast cereal made of Chinese cabbage?

  • Just Say'n||

    I honestly thought Reason was going to sellout on this issue or, at least, offer a lot of 'to be sure's. This article is pleasantly surprising.

  • Just Say'n||

    To be sure, Reason has been doing an awful lot of selling out over the past few years.

  • Crusty Juggler||

    Hell, they ain't even old timey!

  • LynchPin1477||

    So AM links aren't a think anymore?

  • Tyler.C||

    No links for you!

  • DJF||

    The lack of links is just Reason's way of trying to sabotage the Trumps presidency and stop the US from being great again.

  • Tyler.C||

    Well I've got to get ready for work now so...

  • Jerryskids||

    Anybody got the registration for "Morning Woodchippers" yet?

  • commodious is fated to pretend||

    I registered "Mourning Woodchipper" for the inside joke, but now I'm thinking of offering a mulching funeral service.

  • mr simple||

    It's eco-friendly and sustainable!

  • ||

    And when you want to remember Grandpa, just step out on your luxurious lawn!™

  • R C Dean||

    I was talking to a colleague yesterday, and scattering ashes came up (hey, its a hospital - disposing of bodies is a thing*). When her family scattered their father's ashes, they forgot to check wind direction and were picking ashes out of their teeth.

    *Wait, that came out wrong.

  • dschwar||

    Exactly what kind of "clientele" comes to this "hospital"?

  • R C Dean||

    Lots of dying people. Its our business model, really.

  • Mainer2||

    Doctors and nurses tend to develop a grave sense of humor.

  • The Fusionist||

    The Slants - Sour Love official music video

    It's fairly mediocre, and (given their focus on stereotypes) it's too bad they passed up the opportunity to point out that love can be sweet and sour.

  • The Fusionist||

    (It's OK for me to make these jokes because I'm *cauc*asian.)

  • ||

    Putting the cock in Caucasian?

  • The Fusionist||

    OK, guys, you saw that, it wasn't me who made that last joke!

  • Raven Nation||

    This band sang about life being Sweet & Sour.

  • The Fusionist||

    Australians? Cultural appropriation!

  • Rich||

    "the PTO denied the mark HAVE YOU HEARD SATAN IS A REPUBLICAN because it disparaged the Republican Party…but did not find the mark THE DEVIL IS A DEMOCRAT disparaging."

    Ahem. I understand the denial was because it disparaged the *hearing impaired*.

  • John Titor||

    I believe in either case Satan has a libel suit in waiting. He's got enough lawyers down there.

  • ||

    It is obviously false, if the Devil were a democrat, she would have won the election.

  • R C Dean||

    There is a truly funny judicial opinion out there in the case of Some Nutter* v Satan, addressing in deadpan terms the question of whether Satan is subject to the jurisdiction of the court. Because the plaintiff failed to actually serve a complaint on him, the case was dismissed.

    Now, if Satan were to make a court appearance or file a lawsuit, xe would be submitting to the jurisdiction of the court. And not even Satan wants to open himself up to the plaintiff's bar.

    *Not the real plaintiff.

  • Raven Nation||

    A state legislator in Nebraska sued God.

  • ||

    Whaddaya mean? Satan has been in court!

  • Raven Nation||

    Satan as plaintiff.

  • 5Arete22||

    I think that R C Dean is referring to "United States ex rel. Gerald Mayo v. Satan and His Staff".

    "We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official reports disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time."

    I like the Hawthorne reference.

  • Bra Ket||

    The govt feels it is blasphemous to directly refer to Satan by name.

  • mr simple||

    which the Supreme Court has said is constitutional only if it is narrowly tailored to serve a compelling government interest.

    Why is this ever a thing? It's only constitutional if the government really, really wants it to be.

  • Tyler.C||

    Yup. That really just means: we know this is illegal, but in some cases we really really want to do it, do go pound sand.

  • straffinrun||

    If wasn't compelling when the govt passed it, it will be compelling when they enforce it.

  • ||

    A Jewish buddy of mine in college actually bought me a shirt from that magazine that says, "Honorary Heeb".

    I read one issue of it. It had a feature article titled, "Why Do So Many Goddamn Jews Love Billy Joel?"

    I don't remember the answer, but that was the best article title I've ever read.

  • John Titor||

    Goddammit, now that question is actually going to bug me.

    I found the issue, but they only have an excerpt.

  • ||

    Yeah that small sample doesn't really tell me anything.

    "Blocked by Company Filter Policy". I mean, what the fuck does that even have to do with music?

  • R C Dean||

    Perhaps it was the (((Honorary Hebe)))?

  • ||

    Overheard from the accounting department at work: "I'm trying to explain to you that you're doing it wrong, but you're not cooperating".

  • Tyler.C||

    Euphemism ? Not even thinly veiled.

  • The Fusionist||

    The Slants are not *reinforcing* stereotypes, they're *challenging* them - especially the stereotype about Asians being intelligent and talented.

  • Jerryskids||

    What about the stereotype that Chinese music sounds like a bag of cats being dragged backwards through a barb-wire fence?

  • The Fusionist||

    These guys *wish* they could be that cool.

  • ||

    Thankfully that's only Chinese opera, which even my Chinese wife can't stand. I think it's the longest running joke in human history - seeing how many millennia it will take before someone says, "Wait a second, this is just screeching, it isn't singing!"

  • ||

    Vogon poetry?

  • Crusty Juggler||

  • Citizen X||

    If you outlaw Kinky Friedman, only outlaws will have Kinky Friedman, or something! Actually, Kinky would probably be fine with that.

  • The Fusionist||

    As I understand it, registration makes it easier to prove you have a trademark.

    If it's not registered, you can still prove it, but it's more of a headache.

  • Free Society||

    So I'm wondering if ENB is withholding links because the commentariat was so disagreeable towards her article yesterday. She spent a fair amount of time in the comments fighting off the commentarian horde, whose ire she may have provoked, so clearly something or someone really got to her yesterday.

  • The Fusionist||

    Which article was that?

  • The Fusionist||

    ...I think I found it, it's the one with Domestic Dissident, isn't it?

  • Free Society||

    Yeah, the one about about a statute that, by all indications, restores the "reasonable doubt" standard to sexual assault cases in a state where some previous statute explicitly dispensed with the concept of corroborating evidence.

  • The Fusionist||

    Ah, yes, everyone went off on DD, but with regard to the substance of the post, there was a lot of disagreement with ENB.

  • Jerryskids||

    I didn't thoroughly read the article, let alone do any other research on the issue, and I didn't dive into the comments, but my first instinct was to question the premise of "corroborating evidence" somehow setting a higher bar than probable cause. Isn't that what probable cause is? If I call the cops and tell them to arrest you because you stole my wallet, no reasonable cop is going to arrest you just on my charge that you stole my wallet. He has to have some sort of corroborating evidence that my wallet was even stolen and that you are a likely culprit. As long as you insist you have no idea what I'm even talking about there's not much a cop can do. Same with a sexual assault charge, there should have to be some actual evidence an assault even occurred to pursue an investigation.

  • ||

    Isn't that what probable cause is?

    A bit of the issue, IMO, is ENB ignoring probable cause at the political level. ENB is disingenuously aloof wondering "What makes sexual assault so special?" like the left/right culture warriors haven't played this sort of provoked reaction game 100X over. She works right next to Robby, maybe he could've clued her in. At the very least, you'd think a woman advocating women's agency would legitimately tell women to have some corroborating evidence so as not to get caught in and bogged down by he said/she said idiocy.

    The fact that she tried to play the same cultural relevance game that's been played, repeatedly, for decades; Nobody asked, nobody told, how could anyone have a problem with don't ask, don't tell? Thanks to Title IX, more women than men are getting overpriced worthless degrees in irrelevant majors from universities, how was equality not achieved? Whaddya mean the war on drugs is racist? etc.

  • Hail Rataxes||

    some previous statute explicitly dispensed with the concept of corroborating evidence.

    Lie harder.

  • Free Society||

    Why do you always insist that everyone lie like you? Nurse Ratchet let you use the computer two days in a row? As posted by SugarFree yesterday, complete with a link. Feel free to refer back to the article comments section to look it up.

    SugarFree|1.17.17 @ 1:19PM|

    The bill would change the current section:

    I. The testimony of the victim shall not be required to be corroborated in prosecutions under this chapter.

    to

    I. The testimony of the victim shall be corroborated in prosecutions under this chapter only in cases where the defendant has no prior convictions under this chapter.

    And the New Hampshire Governor's Commission on Domestic and Sexual Assualt Model Protocol has three pages of evidence that count as corroboration. (Pg. 62) (PDF warning)

    So yes, this amends a previous statute.

    Troll better.

  • Mainer2||

    I live in NH, and even the legendary Union Leader has got it wrong. The change does NOT set a higher standard for prosecuting rape cases.

  • Crusty Juggler||

    Agreed - this is the most likely explanation.

  • R C Dean||

    She got slapped around pretty hard. I thought the article was just sloppy until I saw her tweet that they were trying to legalize rape. Disappointing!

  • Free Society||

    There's still a good chance this is Robby's fault, just going off historical precedent. But ENB does seem to get a bit touchy when her articles are not well received.

  • Jerryskids||

    Speaking of offensive trademarks, I see Trump has registered his 2020 campaign slogan of "Keep America Great!" and some people seem to find this a little presumptuous, if not even arrogant, of him, seeing as how he's not even President yet and hasn't done anything yet to deliver on his promise to Make America Great Again.

    I think they're missing the point that "Making America Great Again" meant electing Trump. It wasn't a promise that if you elected Trump, he would then make America great, it was merely an observation that America would be great if it elected Trump. Now that he's been elected, America's proved its greatness. Kinda like Obama's statement that his nomination marked the moment people would remember as the moment the rise of the oceans began to slow and the Earth began to heal. He doesn't have to do anything to keep his promise, his mere ascendency suffices to fulfill prophecy.

  • ||

    He doesn't have to do anything to keep his promise, his mere ascendency suffices to fulfill prophecy.

    Lisan Al Gaib!

  • Longtobefree||

    OK, so -
    Old Navy is out (ageism)
    Polo is out (only rich play)
    Mc Donalds is out (excludes non Scots)
    etc

    To arms! To arms! The bureaucrats are coming!

  • Quo Usque Tandem||

    Everything is offensive to somebody or other, and the government has no sense of humor, about anything.

  • R C Dean||

    I tend to believe they get at least the occasional chuckle from the suffering and subjugation of the proles.

  • JSpey||

    If I'm Simon Tam, and I want to make a name that's mildly disparaging to asians, I'm calling it Firefry.

  • ||

    Finally! - Man, I thought there were more nerds here.

  • JSpey||

    I thought there were more Fryerfry fans...

  • Mainer2||

    So the PTO registered Heeb for the magazine, but refused to register it for the clothing line. So they're indian givers as far as the trademark is concerned. Giving it once then denying it seems like they welshed on the deal. OTOH, maybe the magazine tried to jew them down on the registration fee, and the PTO people got their irish up.

  • Robert||

    There are surely reasons for Tam to prevail, but how is it freedom of speech for him to prevent other people from using "The Slants"?

  • Robert||

    And how is he injured? Has another band been passing themselves off as The Slants?

  • Bra Ket||

    Don't trademarks get monopoly protection whether you register them or not, as long as you use them? Are band names different or something?

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