Free Speech in Trademarks: Refusing Scandals or Reclaiming Identities?

By: Morgan Sills 

My social justice presentation explored the latest developments in the never-ending battle between Free Speech and TTAB’s ban on “scandalous” and “offensive” marks. On June 24, 2019, the Supreme Court of the United States held that the Lanham Act’s prohibition on the registration of “immoral” or “scandalous” trademarks violated the First Amendment guarantee of Free Speech. Icanu v. Brunetti, 588 _______ (2019). This was the end of a case concerning the controversial clothing line “FUCT,” which had previously been denied trademark protection from the USPTO for its play on words.
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In my opinion, this prohibition was applied in a duplicitous fashion. While certain marks were rejected for being offensive, other marks depicting racial stereotypes have earned long-standing recognition and commercial protection as trademarks. Images such as the mammy character of Aunt Jemima (which was originally inspired by a minstrel show), the servile Uncle Ben, and the infamous slur embodies by the Redskin’s football logo were all approved.

And yet, recent events have shown that creators can use marks to reclaim identities and turn stereotypes on their heads. In pop culture, women have been able to reclaim “b***h,” lesbians have reclaimed the word “d**e,” and in what is likely the most famous case of reclamation, rappers Ice Cube, Dr. Dre, Eazy-E came to fame when their group appropriated the word “n***a” for the name NWA, using the word as a powerful platform to speak about the lives of Black men in America.

The Brunetti case was immediately preceded by Matal v. Tam, where a Chinese-American rock band from California was denied the use of the name “The Slants,” because the words are a slur commonly used to degrade against people of Asian descent.  Aiming to disarm of the word of its negative connotation, the band eventually won their battle in November of 2017.

Since that decision and the Brunetti holding, the number of previously offensive marks has dramatically increased. Interestingly enough, Justice Sonia Sotomayor predicted this increase when she concurred in part and dissented in part against the Brunetti holding, warning that government would have no statutory basis to refuse the “obscene” marks and images in a “coming rush” of applications. Currently, there are 1,338 marks associated with the word “b***h”, 39 for the word “n***a”, and 69 for the word “d***e”, and 328 for the word “p***y.”
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For sure, stereotypes and slurs can be turned inside out, especially when this process is initiated and controlled by the very people that had to endure their negative effects. Every person and group of people deserve the opportunity to claim power through their names, and if they choose to trademark these words, so be it. But I do think Justice Sotomayor made a valuable observation: once the floodgates have opened for offensive marks, any person will be able to use the words for any reason they see fit.