On Betsy Ross and Bad Language: Navigating the New Marketing Minefield

In this opinion piece, attorney John A. Squires looks at the recent controversy involving Nike sneakers sporting a 13-star, Revolutionary War-era flag, and how the questions raised by the episode fit in with a Supreme Court decision on the use of controversial words as marketing tools. Squires is a partner at Dilworth Paxson LLP, where he heads the emerging company practice and is co-head of intellectual property. He was previously chief IP counsel for Goldman Sachs & Co. He is also an adjunct professor teaching legal writing at the University of Pennsylvania School of Law.

“You keep using that word. I do not think it means what you think it means.” — Inigo Montoya, The Princess Bride

From the Hollywood fable, The Princess Bride, both pop culture fans of a certain age and current meme aficionados will fondly recall master swordsman Inigo Montoya’s famous retort to his Sicilian boss’ repeated, excited utterances — “Inconceivable!”

It’s not a far stretch, then, to see both Nike’s latest kerfuffle arising from pulling its new line of Besty Ross Flag-emblazoned sneakers from the market, and the U.S. Supreme Court’s decision last week permitting trademarking the term “FUCT,” as the timeless Princess Bride vignette playing out in real life.

In Nike’s case, there’s nary a more recognizable trademark than its famous ‘swoosh,’ but the sneaker controversy erupted with the release of a “Betsy Ross” flag (flags cannot be trademarked, by the way) on the heel of the sneaker. Colin Kaepernick, a famous former National Football League star who stirred controversy for kneeling as a social protest during the playing of America’s national anthem, reportedly felt the flag connoted the dark days of slave ownership in the U.S. and took offense to the new shoe line, leading to its cancellation.

So put-off by Nike’s move was Arizona Governor Doug Ducey that he is threatening to withdraw tax incentives provided to Nike for the manufacturing plant in his state.

Surprised at this notion, well-known media pundit Joe Scarborough instead saw the Betsy Ross flag as a “defiance against a distant monarchy.”And so put-off by Nike’s move was Arizona Governor Doug Ducey that he is threatening to withdraw tax incentives provided to Nike for the manufacturing plant in his state. So what does it all mean? Exactly the point.

In the case of the “FUCT” trademark (and its companion “Slants” case two years ago), LA apparel maker Erik Brunetti claimed his term meant “Friends U Can Trust” — an acronym – to be “pronounced as four letters, one after the other: F-U-C-T.” However, the U.S. Supreme Court wasn’t so sure, dryly noting ‘[but] you might read it differently and, if so, you would hardly be alone [and] that the brand name [also reads] as the equivalent of [the] past participle form of a well-known word of profanity. That common perception caused difficulties for Brunetti.”

Indeed. Whatever Nike may have wanted to connote in connecting its famous swoosh mark with the (untrademarkable) Betsy Ross flag , or Brunetti may have meant by “FUCT” —  or even Simon Tam (in the Supreme Court’s companion case decided two years earlier) may have had in mind in self-titling “The Slants” for his Asian rock-dance band, we are witnessing the eruption of market selection and market forces applied in all their glory to Old Glory, profanity and disparaging epithets in the new, new world of trademarks.  With it comes the  potential to profit (or not) by terms, logos and symbols that may — and often do — offend. Is this, in the trademark world — and with due attribution in part to one of the great philosophers of our time, Yogi Berra — laissez-faire “all over again?” Are we experiencing a new breed of “Free-speech Freakonomics?

One need to look no further than the $2,000 price tag on the now off-the-market Nike sneaker to conclude resoundingly, yes.

So how did we get here? Simply put, this new marketplace is the residue of a collision occurring in the esteemed chambers of the U.S. Supreme Court between the still-as-yet irresistible force of free speech and the (apparently movable) object consisting of a governmental ban on registering disparaging, immoral or scandalous trademarks. Reiterating the central tenet of  American “free speech law: [that] the government may not discriminate against speech based on the ideas or opinions it conveys,” the Supreme Court held in its Brunetti decision that such determinations are inherently value-laden viewpoints and it is impermissible for the government to pick sides. By a margin of 6 to 3, the Supreme Court once again declared free speech the clear winner.

With the governmental ban struck down, a free market – with all its warts – has broken out with the consuming public now able to vote with their pocketbook. Take the Nike dispute —  outcry from some, rallying-behind for others and tax incentives in play, does anyone need more convincing that the market’s invisible hand is at work? If you do, then you’ve forgotten you can pick up a pair for a cool $2,000. Supply, please meet demand.

Interestingly, with these new trademarks and controversial banding gambits, the invisible hand has suddenly become more transparent. Consider Brunetti’s intention to sell his T-shirts and sue knock-off artists with his newly minted trademark (which had heretofore been banned). His enforcement actions would be visible and his claim for damages measurable. Of note also is Tam’s effort to register “The Slants” for his Asian rock-dance band in an effort to reclaim a piece of cultural heritage for his group and drain the slur of its “denigrating force.” Brilliantly, Tam’s calculus involves utilizing the influencing power of social media to catalyze change in the dictionary definition of the term over time, which to an extent they will have more control over given the award of their trademark. Whatever the market ultimately thinks or does, the Court held firm to the “bedrock First Amendment principle” in the U.S. that the government cannot be in the business of discriminating against “ideas that offend.”

Here, the Supreme Court’s opinion provided a profound insight as to how to determine ‘viewpoint’ — relying explicitly and directly on contemporaneous dictionary definitions in their analysis of the terms at issue.

That a free-market would break out to fill the vacuum created by striking down viewpoint-based bans was not lost on the Court. Indeed, that notion formed the very rationale in the earlier Supreme Court Slants decision that this space is no place for the government. And, with a mix of deja vu and irony, Nike, itself, figured prominently in the Court’s Slants opinion: “[If] federal registration of a trademark makes the mark of government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things.… For example … what does the Government have in mind when it advises Americans to ‘Make. Believe’ (Sony), ‘Think different’ (Apple), [or] ‘Just do it’ (Nike)…?”

As a result, if we are to “Think different[ly]” about the new Free Speech Freakonomics, what is to be the market data informing the markets thinking? Here, the Supreme Court’s opinion provided a profound insight as to how to determine “viewpoint” — relying explicitly and directly on contemporaneous dictionary definitions in their analysis of the terms at issue.  Helpfully, this is completely congruent with the fundamental precepts of trademark law because ferreting out the “sight, sound and meaning” of terms is the name of the game.

Therefore, by tethering such questions to common, contemporary dictionary definitions and usage – just as the Supreme Court did in its analysis — one will be able to determine viewpoint-based zones on which the government must bide their tongue. Effectively, dictionary references will comprise Free Speech Freakonomics’s market data, as such, by ceding the ground to the private regulatory enforcement process of trademark owners. Note to formerly silenced applicants, let the market speak.

To be sure, three Justices dissented to making laissez faire of objectionable trademarks as the law of the land: Chief Justice Roberts, Justice Breyer and Justice Sotomayor. Chief Justice Roberts and Justice Breyer balked on the grounds that a more narrow interpretation of the statue might save it (which is ironic insofar as Roberts and Breyer were willing to go against the otherwise plain meaning of the federal law. In fact, concurring Justice Alito effectively called them out on that score, admonishing that “we are not legislators” and that it was not the job of the Court to re-write law on the fly.)

Separately dissenting, Justice Sotomayor worried about a parade of profanity to follow. Time will tell if her concerns come to fruition; however, in the direct aftermath of the Court’s decision, those looking to immediately land-grab vulgar trademarks will still have to show the term is a source of goods and not just a repetition of an everyday epithet now printed on a sweater. In either event, the majority of the Court reasoned that these concerns did not outweigh the protections afforded to private citizens under the First amendment, and the dangers of governmental viewpoint-based discrimination. Let the trademarks roll.

As one may suspect, the Court’s use of  dictionaries as ready references to support is not in and of itself new. In the Second Amendment gun control decision DC v. Heller, Justice’s Scalia and Stevens battled epically over conflicting definitions from contemporary dictionaries published in the 1790s to determine what was meant at the time when the Congress provided its citizenry the right to “bear arms.”

But what is novel and indeed remarkable about the Brunetti case’s reference to dictionaries is that it now effectively enshrines contemporaneous dictionary definitions as a measuring stick by which to determine the meaning of terms relative to current social norms. Indeed, as societal tastes and notions change over time and meanings of terms evolve, contemporaneous usage, including potentially now trademark owners’ registered marks, can help influence dictionary meaning.

So it would appear that in this new world of Free Speech Freakonomics, one in which the market decides what it values and what it eschews, it is undoubtedly a bull-market for our friendly neighborhood lexicographers. This should be welcome news to he likes of Kory Stamper, self-described “word nerd” and author of Word By Word – the Secret Life of Dictionaries, whose job it is to troll the internet and social media for word meaning, use and change.

For her part, Stamper certainly gets it — devoting an entire chapter to “Bitch – On Bad Words” — which provides a peak behind the curtains as to how vulgar, distasteful and derogatory words get defined. “When you spend all day looking carefully at words, you develop a very detached and unnatural relationship with them,” Stamper confides.  “It’s much like being a doctor, I imagine: A beautiful person walks into your office and takes off all their clothes, and you spend all your time staring raptly at the sphygmomanometer. Once you get them in your office and have their clothes off, all words are the same for a lexicographer.”

If nothing else, dictionary definitions, including social media use, and society’s hues, cries and even cancellations may infuse life and meaning into disputed if not viewpoint-based terms, and it has to be good news for transparency that dictionaries are precisely the tools to turn to in making such determinations.

As we are seeing played out with Betsy Ross and Nike, Simon Tam and the Slants, and Brunetti and his T-shirts, the market will be the arbiter of what is derogatory or what is clever. And via dictionaries, we will be able to keep up with the relative success, or not, of whether these trademark holders can sustain traction and maybe even profitability, as the case may be.

The fate of Slant’s cause and the “FUCT” trademark will now be sorted out in the new open marketplace, where the Supreme Court’s decision striking down viewpoint-based bans now welcomes all comers.

For Nike, perhaps it’s a question of branding or tarnishment, for Tam, a means by which to effectuate cultural reclamation and for Brunetti, whether his clientele wishes to see and be seen with his edgy apparel line, the market will tell the tale of the tape.

With that, pop culture and social media will provide the backdrop and barometer for the market to discern what may be woke and desirable, or lame and shunned. But even if a proliferation of bad language results and “roses by any other name” don’t come up roses in terms of social progress, that may well be the price to be paid — for, rightly, according to the U.S. Supreme Court’s First Amendment opinions, “the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.”

Overall, the fate of Slant’s cause and the “FUCT” mark will now be sorted out in the new open marketplace where the Supreme Court’s decision striking down viewpoint-based bans now welcomes all comers. Either or both may be free speech’s blessing or curse, depending on how the market looks at it – no matter what flag you may salute, what your race is, or what may hurt your delicate ears.

The opinions expressed are those of John A. Squires and not necessarily attributable to Squires’ firm, clients, institutions or affiliations. He would like to thank and acknowledge the work of his daughter, Elizabeth M. Squires, a pre-law student at the University of Southern California, who presaged this brave, new marketplace and coined the term Free-speech Freakonomics, which he uses with her permission.

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