The issue of trademarking offensive terms is being visited for the second time in two years by the U.S. Supreme Court, with apparel designer Erik Brunetti attempting to trademark the brand “FUCT.” Is it possible for profanity and even racial slurs to be reclaimed as a point of pride and inclusion? Legal experts seem to agree that the tide may be turning, writes Elizabeth Squires, a student at the University of Southern California, in this opinion piece.
“Oooh Fuuudge! … Only I didn’t say ‘Fudge.’ I said THE word, the big one, the Queen-Mother-Of-Dirty-Words, the ‘F-dash-dash-dash’ word!”
–Ralphie, A Christmas Story (1984)
While seemingly a quaint expression today, just last month the U.S. Supreme Court heard oral arguments as to whether the “Queen-Mother-Of-Dirty-Words” can be ownable as a trademark. Indeed, the Supreme Court is back to both setting and breaking the boundaries on the trademarking of vulgar, scandalous, offensive and/or disparaging words for the second time in two years. In 2017, the Court took on the debate on whether a racially disparaging term for Asians could be trademarked by the self-titled rock band, The Slants. Now with attention again at the U.S.’s highest court from an apparel manufacturer trying to trademark “FUCT,” we see a collision between free speech and government-granted intellectual property rights — leaving us and our prized free society asking, who wins? With a little bit of technology, and a whole lot of understanding, we might be able to agree that the answer is, in a word, “diversity.” But it’s up to us to decide.
While the prospect of trademarking expletives may be jarring or even laughable to some, the seismic shift in free speech jurisprudence was already underway as a result of the 2017 Supreme Court case, Matal vs. Tam (‘Tam’). Tam concerned The Slants’ band trademarking of a term deemed “racially offensive,” with the Court unanimously holding that the government has no place in refusing such registrations no matter what they think. As a result, previously downtrodden groups may effectively gain market power with a new weapon in their hands — ownership rights — to reclaim heritages, mount cultural defenses, and breathe new life and meaning into their process of self-determination.
The market of today presents a new breed of “Free-speech Freakonomics,” where groups can find their own sense of meaning and self-branding. Somewhere between bad words and bullying, the prospect of ownership rights presents an opportunity for empowerment, pride and self-definition that can in turn bring about positive societal change. Throw in my ‘Gen Z’ generation — armed with the power of Twitter to comment, scrutinize and more or less socially “cancel” the haters hating — and for the first time the very words we choose can actually bring about social change. And we must choose carefully.
“The market of today presents a new breed of ‘Free-speech Freakonomics,’ where groups can find their own sense of meaning and self-branding.”
The Power to Name
What’s in a name? Perhaps nothing, if “a rose by any other name would smell as sweet,” as Shakespeare tells us. Or perhaps everything, as the Old Testament biblical verses hold that “whatever the man called each living creature, that was its name.” At a certain level, to name is to claim — not in the way your parents did to you, but in the way in which we claim to own what we already know by assigning it a particular name. To name something is to have power over it.
Of course, history is replete with the abuse of this power. The power to name often comes with an effort to assert dominance over others, and sadly, we’ve seen humanity’s worst with racism, segregation and genocide. So it should come as no surprise today that widespread efforts are afoot for previously denigrated groups to rename and reclaim ownership of their culture. And, for the first time, the Tam decision may help level the playing field.
Bad Words with Good Intentions
For Simon Tam, the issue arose when his trademark application for his rock-dance band The Slants was denied for being racially offensive, despite his intention to use trademark rights to drain the slur of its “denigrating force.” The government argued its denial was appropriate because trademarks were effectively government speech — a notion which the U.S. Supreme Court found profoundly ironic: “If federal registration of a trademark makes the mark 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), ‘Just do it’ (Nike), or ‘Have it your way’ (Burger King)?”
Ultimately, the Court concluded, that “giving offense is a viewpoint,” and that the government’s ban would also apply to socially “positive” trademark-speech such as ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ Accordingly, down went the government’s ban. Indeed, the Court noted that while “[speech] that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful … the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate” (emphasis added).
In the context of today’s social media saturation, this notion of tolerance in “the thought that we hate” may be more important than ever because now the market — not the government — can decide what it thinks about such trademarked speech.
A New, Empowered Market
With this, the power is in society’s hands as participants of a new, empowered market to choose what we like.
Though victorious, The Slants were not the first to test the government. More than a decade earlier, the not-for-profit Women’s motorcycle club, Dykes on Bikes, was similarly denied trademark registration as potentially disparaging to lesbians. Supporting Tam at the High Court, Dykes on Bikes and a slew of similar-minded amicae, or “friends of the court,” argued that such denials only frustrated their goals to reclaim oppressive terms and further fueled the vicious cycle perpetuating their oppression.
“To be sure, no Tam supporter argued for a right to be racist or offensive. Rather, they focused on actively trying to reclaim a word already made offensive by an oppressive group.”
To be sure, no Tam supporter argued for a right to be racist or offensive. Rather, they focused on actively trying to reclaim a word already made offensive by an oppressive group. According to Dykes on Bikes’ legal counsel, Stanford Law School IP lawyer Mark Lemley, trademark rights would enable the club’s members to “publicly appropriate the very words previously used to shame them into silence and submission as well as [claim] those words as a source of pride and as a rallying cry for winning equal rights under the law.”
With this notion, trademark rights can be a tool to promote inclusion and increasing societal acceptance of terms once deemed disparaging. This is exactly what the LGBT community has done, attaching a new, positive meaning to the once-offensive term “queer”— and even adding it as a valid identifier to represent the “Q” in the new name of “LGBTQ+.”
To others, however, the most immediate and visible after-effect of the Tam ruling occurred in the National Football League. With all the drama of a final-second Hail Mary pass, the Tam decision stopped the cancellation of the Washington Redskins famous trademark dead in its tracks. But why did the Supreme Court take the Slants and “FUCT” cases and not the Redskins? Speculation from legal observers is that especially The Slants’ case was more sympathetic because the band’s moniker came from its own Asian-American members. Indeed, the Dykes on Bikes website still today urges the Washington Redskins to drop their name because it is not self-referential.
As for the voice of the consuming public, the Redskins’ top counsel, Robert Raskopf, noted, “The government cannot take a position on speech that happens to offend. There are other ways to penalize speech that others don’t like, particularly in the commercial area: You don’t buy the product, you don’t support the organization. In the free marketplace of ideas, you take what you like, don’t take what you don’t like.” And we will.
Beyond Dictionary Definitions
If, as Raskopf suggests, the marketplace of ideas trumps the concerning speech it attaches meaning to, then dictionaries — specifically, modern dictionaries which are web-based, interactive and influenced by current uses, become a source of market data for definitions.
According to John A. Squires, former chief IP counsel at Goldman Sachs, this notion of a market and definition lie at the heart of this brave new trademark world. He asserts, “A trademark is a badge of origin, and words or terms which start out as descriptive can acquire secondary meaning over time and thus be registered. The questions then are what is that meaning, and is it associated with the source? That’s where reclamation becomes possible.” (Editor’s note: John Squires spoke about the Iancu v Brunetti case concerning the trademark for “FUCT” with Penn Law’s Polk Wagner during a recent episode of the Knowledge at Wharton radio show on SiriusXM. Listen to the podcast at the top of this page.)
To hear dictionary-writing professional Kory Stamper tell it in her book, Word by Word, the Secret Life of Dictionaries, “it is the damnedest thing to spend your career in the company of this gorgeous, lascivious language. We don’t do the work for the money or the prestige, we do it because English deserves attention and care.”
And, as Stamper reveals, definitions change and society has a voice in that change. Take “Nude” for example. Shockingly, the Merriam-Webster Dictionary online video definition set forth “nude” not just as “having no clothes on” but also as “having the color of a white person’s skin.” Unsurprisingly, following an avalanche of emails and posted outcries, the definition was “revised” to “having a color that matches the wearer’s skin tones [such as] < nude pantyhose > or <nude lipstick>.”
“Now, more than ever, what we have to say and what the market thinks matters.”
Or, even more controversially, take the term “Marriage.” Despite the Supreme Court’s 2015 decision recognizing same-sex marriage under the Constitution, a vicious tidal wave of write-in campaigns befell Stamper and her dictionary compatriots. That “kerfuffle,” as she describes it, even made it to comedian and political commentator Stephen Colbert, who dryly noted that “Merriam-Webster made this change back in 2003 … which means that for the past six years of my marriage, I may have been gay-married and not known it.”
In today’s dictionaries, and this newly unregulated, free (trademark) speech market, definitions will be the currency of a mark’s meaning and effectively the “market data” of such speech.
Presciently, Stamper predicted the cultural dynamic at issue in Tam and again now in the “FUCT” case:
The nursery rhyme ‘sticks and stones may break my bones, but names will never hurt me’ is a lie that every five year old knows in their deep waters. Words hurt, because they are one of the only socially acceptable ways we can attack each other and suddenly the retiring lexicographer is right in the middle of the melee… [We] are also aware of the attempts to reclaim the word, to wrest from the oppressor that power to unmake a person and to use the worst slur imaginable as a point of pride.
As such, Simon Tam’s successful attempt to infuse meaning into a term by trademarking it was brilliant. He and other newly minted trademark holders have been unleashed to kick-start a new era of free speech and cultural reclamation, where we as market participants have a voice. Now, more than ever, what we have to say and what the market thinks matters. Society should take note from The Slants® and we should be sure to speak loud enough and proud enough for the lexicographers to hear.
Elizabeth M. Squires is an academic Trustee Scholar studying pre-law at the University of Southern California and a former intern for the Risk, Assistance Network and Exchange (RANE). The author would like to thank legal experts and scholars Robert Raskopf, of Quinn Emmanuel, who represented the Washington Redskins in its trademark dispute; John A. Squires, former chief intellectual property counsel of Goldman, Sachs and Co. and an intellectual property partner at Dilworth, Paxson LLP; and Mark Lemley, Stanford Professor of Law, a leading legal scholar on intellectual property. The opinions expressed are their own and not necessarily attributable to their firms, clients or organizations.