Supreme Court Ruling Sparks New Trademark Filings

July 24, 2017

The recent decision in Matal v. Tam, 137 S. Ct. 1744 (2017), which held that the disparagement clause of Supreme Court BuildingLanham Act, prohibiting federal trademark registration for marks that might disparage any persons, living or dead, was facially invalid in light of the First Amendment protections for freedom of speech, has spurred several new trademark filings since the June 19th decision. These filings include some very racially charged words and symbols and the number is likely to increase as the full impact of the ruling is felt.


Historically, any mark that could be interpreted to disparage an identifiable group of people was denied registration. This has left a void that some people are eager to fill. This has opened the door to the possibility of seeing products that would be branded with offensive words and symbols. There is also the question of if organizations historically associated with hate would choose to register their marks as well.


It is unclear so far how the market will react to the influx of these kinds of products, but some of the registrants claim that they are registering the marks in an effort to control who would have access to them. The theory behind this idea is the one similar to the one put forth by the rock group, “The Slants,” when they attempted to register their band name. That registration eventually led to the Supreme Court decision in Matal v. Tam, cited above. The idea is that if a group can reclaim a particular term and use it to either reshape the public’s view of the term or desensitize people so that it would lose the negative connotation associated with it.


A group headed by Steve Maynard, a trademark consultant in Virginia, has founded a firm called Snowflake Enterprises which intends to capitalize on the rule change by registering the swastika and other offensive terms for use on clothing and alcohol sales. His idea is to turn these historically troubling marks into a brand that would have products across a spectrum of industries. He claims that he will be using the marks to turn “hate into hope” and that he wants to change how people see these words and symbols.


Another entrepreneur, Mike Lin, has a similar idea for the sales of clothing with slurs that are historically insulting to individuals of Chinese, and other Asian, heritage. He states that he plans to, “take [the word] back” and re-appropriate it. Although he also knows that the shock value of the shirts will likely generate media and news coverage for his new brand.


While it’s still unclear how consumers will react to these new brands, and their intentions, only time will tell how much goodwill and value the marks will be able to generate. If filing trends are accurate, there may not me much of an immediate impact. There have been about 33,000 trademark filings since the Tam ruling, and only 9 of those applications are marks that would have been historically denied under the disparagement clause of the Lanham Act.


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