One year ago, the Supreme Court handed a little-known Asian-American rock band called The Slants a huge win when it found that a ban on registering disparaging trademarks was unconstitutional. In justifying its conclusion, Justice Samuel Alito observed that the disparagement bar “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
The band’s leader, Simon Tam, had been called “gook” and “Jap” at school. Until the day he’d had enough. “I’m a chink,” he said, “get it right.” For Tam, the ability to trademark his band was about reclaiming a marginalized identity through reappropriation. Just after the ruling, Tam triumphantly proclaimed “a win for all marginalized groups. It can’t be a win for free speech if some people benefit and others don’t.”
As the ruling suggested, all kinds of speech — even disparaging speech — want to be free. But the law enacted barriers around certain kinds of speech for a reason. Now that those barriers have come down, there’s a rush to claim this new ground. And the results, it seems, are revealing. It turns out that there’s a lot more demand for branded vulgarity than we realized.
As someone who has taught trademark law to generations of students, I have a particularly strong affinity with Tam’s project. Indeed, the drive to reclaim disparaging terms can only begin with the disparaging history of branding itself. In the early 1900s (and even before), advertising companies routinely relied on caricatured images of racial and ethnic minorities. This disturbing tradition, while waning, lingers even today (think Aunt Jemima, whose brand owners once hired a former slave to impersonate her).
But as long as the advertising industry has relied on such images of minority groups, those minorities have been reclaiming and recoding them. In 1972, the artist Betye Saar drew on her collection of racist kitchen bric-a-brac, culled from neighborhood flea markets, to create an iconic image of a gun-wielding mammy figure, aptly titled “The Liberation of Aunt Jemima.” Native American artists such as Charlene Teters and Jason Lujan have used racialized mascots in their own multimedia projects, laying bare their underlying stereotypes, as a way of excising them of their dehumanizing power.
The reclamation extends beyond race. When the gay community was facing the AIDS crisis, a group of artists reappropriated the symbol of the pink triangle that the Nazi regime had forced gay people to wear. That same triangle, a symbol of death, became recast as ACT-UP’s defining symbol for gay liberation. Silence, the accompanying slogan said, equals death.
The queer community has had a longstanding romance with reappropriation. Every year, nearly every LGBT pride parade is led by a formidable group of women riding motorcycles, who call themselves the Dykes on Bikes.
Their trademark story, like Simon Tam’s, is a strange one. Their mark was first denied by the Trademark Office, who found that the term “dyke” was disparaging. The office eventually reversed its decision after reviewing hundreds of pages demonstrating that the name had been successfully reclaimed by the lesbian community.
Meanwhile, the Trademark Office’s guidance was far from clear. Around this time, “Technodyke” and “Flea Market Hookers,” were successfully registered, but the toy brand “Dykedolls” was not.
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Up until Tam’s case, the Trademark Office had its share of inconsistent outcomes — a point that was not lost on the Supreme Court. In a footnote, the Court notes that the Office refused to trademark “Have You Heard Satan Is A Republican?” but allowed “The Devil Is A Democrat.”
But the Supreme Court, even as it aimed to harmonize trademark law with the First Amendment, produced a curious irony. Just as it empowered individuals to reclaim derogatory terms, its ruling also extended protection to entrepreneurial haters, too. Indeed, our branded world could soon look more like an endless epithetic enterprise, a virtual Insult-o-Mart featuring the most flagrant terms for derision. In the five weeks after The Slants opinion, trademark lawyer Ed Timberlake told National Public Radio that applications had been filed for “Gutter sluts,” “chink,” “damn vegans,” and at least five applications with the term “nigga.” There was even a swastika in the mix, registered for use on “fabric, apparel, upholstery, and flags.”
There are now at least three different kinds of marks which can be registered without challenge. The first category includes marks that comprise, well, hate speech — the name of the pro football team in Washington, as an example. The second falls into Tam’s context — self-referential marks.
But the third group is different. Like a team playing defense, these trademark owners seek to register marks to keep the rest of the public from doing so.
In perhaps the most surprising result of the court’s ruling, the applicants for several of the most offensive terms did so not to sell merchandise, but to stop others from doing the same. Curtis Bordenave, an applicant for a trademark using the n-word, maintained that he raced to trademark the term in order to protect the word, to secure it “and to make sure that it’s used in a way that I think would not disparage people.”
The person who sought registration of the swastika did so for exactly the same reason — to block others from having access to the mark. But ironically, in order to actually keep his trademark registered, he has to actually sell products with them. He told NPR, “If you want to buy that swastika flag, you’ve got to buy it through us. And its going to be a thousand dollars each.”
There is something deeply paradoxical about using the power of intellectual-property rights to do things (like protecting minorities from slurs) that our classic coterie of civil-rights protections have failed to do. When we launder our desire for civil rights and equality through the lens of branding culture, everything becomes commodified. The marketplace of ideas becomes a battleground of brands, trademarks, images, sardonic hashtags. #WTF?
Even though the Supreme Court assured us, time and again, in Tam that trademarks are private speech, not government speech, there is an inescapable difference between a word and a brand. Brands are more than just private speech. They are commodified, commercial speech with public implications.
What happens to the rest of us when those words — and images — play into the wrong hands. Are we creating a demand for disparaging brands, or is the demand creating us in the process? One lawyer, commenting on the case, Mark Conrad, asked, “What if I wish to trademark the name ‘Blackfaces’ for my band, with a design of a person in blackface? Or. . . what if I would want to sing the praises of restrictions on immigrants from Mexico by creating a band with the name of ‘Wet Backs?’” The First Amendment protects the right to say offensive things. And now you can register, advertise, and brand them as well.
Indeed, less than six months after Tam, an appeals court handed down another win for free speech when it ruled that Erik Brunetti could trademark the four-letter word “Fuct” on his clothing and related fashion merchandise. Since then, applications have been filed for “Big Ass Balloons,” “Mr. Chink,” and “Asian AF.” Suddenly, every slur, insult, and caricature seems like a golden opportunity to commodify and profit from the most repellent sound bites.
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The larger and more interesting question is what this new trend says about us as a society. Are the most prurient of perverts just cashing in? Have we always carried a penchant for branded vulgarities, one that was frustrated until the courts threw off the shackles? This situation may demonstrate that today’s marketplace of ideas — the metaphor celebrated by our First Amendment jurisprudence — has morphed into a marketplace of brands instead. We talk about social issues through hashtags, abbreviations, emoticons. So it makes perfect sense that if we want to say something useful or even eye-catching — in this moment, we turn to trademark law to do it for us. We are living in a world where ideas can no longer successfully circulate unless they are branded, reduced into commodifiable sound bites, hashtagged, or distilled into 140 characters or less. So if trademark law will no longer serve as the gatekeepers of taste by banning certain brands from registration, maybe it’s up to us to solve the problem by buying them up first.
But the more trademarks we register, the more likely we’ll soon run out of them, as law professors Barton Beebe and Jeanne Fromer just argued in a recent Harvard Law Review article. And then we will have to come up with new ones. Those new marks, like we’ve seen, might be meant to cash in on the catchphrase of the moment. Others might try, however gamely, to reclaim a slur, like Simon Tam.
But the more offensive words we register, the more we can become desensitized to them. It becomes more and more difficult, then, to tell the difference between a group that wants to reclaim a mark as an offensive slur, to change its social meaning, and those who just want to offend. As rapper Kendrick Lamar showed at a recent concert — at which he chided a white fan for singing along to lyrics that included the n-word — some people think that certain words should really only be used by certain people. Trademark law no longer recognizes a difference. And if trademark law can’t tell the difference, then neither will we.
So as much as the Slants case seemed to level the playing field for trademarks, it has actually done the opposite.
Just a few weeks after the opinion was handed down, the Department of Justice asked the Fourth Circuit Court of Appeals to end a decades-long challenge, led by Amanda Blackhorse and five other Native American plaintiffs, to the name of Washington’s NFL team. Their effort had been percolating long before Tam had even been born, and because of Tam, they lost the case. “There’s no more challenge to make,” their lawyer, Jesse A. Witten, told the Washington Post.
Back in 2013, the team owner, Dan Snyder said he would never change the name. “You can put that in all caps,” he told one newspaper. Blackhorse was then asked what she might say to Snyder in person. “I’d ask him, ‘Would you dare call me a redskin, right here, to my face?’” she said. “And I suspect that, no, he would not do that.” Her point was that people who would never think of insulting someone with an offensive slur can be led, through the power of marketing, to willingly wear a brand that does exactly the same thing.
Four years later, Snyder’s statement about the Tam case read, “I am THRILLED! Hail to the Redskins.” The real winners in a vulgarly-branded America are the powerful. Brands, like people, don’t exist on a level playing field.Sonia K. Katyal is a professor of law at the University of California, Berkeley, and co-director of the Berkeley Center for Law and Technology.