Your Legal Guide To Offensive Trademarks

You remember that movie Ghost World? Me neither. It starred that girl from American Beauty and that girl from Lost in Translation and Steve Buscemi Eyes and the kid from The Client (R.I.P.). But none of that matters! What matters for our purposes today is that the plot involved signs from something called Coon Chicken Inn. Spoiler alert: that place actually existed! It was a chain of three fried chicken restaurants that trafficked in succulent breast meat and crazy f**king racism. According to its wiki entry, Coon Chicken Inn even possessed trademarks. Real, valid, honest-to-God trademarks.

This week, the Washington Redskins were adjudged to be more racist than Coon Chicken Inn. Well, not exactly. Specifically, the Redskins trademark was cancelled on the grounds that it was "disparaging to Native Americans." You can read Elie's take and the actual decision itself here.

But what if I told you that Coon Chicken Inn was just the tip of the racist iceberg? What if I told you that same iceberg is racist sexist, and homophobic? Is that an iceberg you would be interested in investigating?

Let's muck around in the fever swamps of America's offensive trademarks and the shaky legal edifice that has been erected around them, shall we?

We shall...

JAP

We begin our journey into the heart of darkness with a term that will warm the cockles of every American veteran of the Pacific Theater. For our purposes, JAP is the name of a women's clothing line that was actually granted trademark protection. Although an oft-cited case in offensive trademarks, the company itself is impossible to find traces of.

If you thought the subheading above was referring to Jewish American Princesses, keep your powder dry. Because next, we have...

HEEB

Heeb Media was that rarest of media companies that was run by a whole passel of gentiles. Just kidding! The company was totally run by Jews. And that was part of the reason it presented a tricky proposition to the U.S. Patent and Trademark Office. At issue in In re Heeb Media was whether a trademark applicant's "good intentions" could save it from rejection. The company was clearly trying to co-opt the term from bigots, making it a proper noun of pride rather than pain. The USPTO ruled that the road to both hell and trademark rejection is paved with good intentions. Trademark denied.

SPIC

An apparel company attempted to register the name SPIC for their clothing, the acronym standing for Spanish People in Control. The only evidence online of this attempt at Heeb-like co-opting can be found here. For those hoping to read about the cleaning solvent Spic n' Span, here is a relevant passage from its wikipedia entry:

The spelling spick and span is preferred, although in America the cleaning product called Spic 'n' Span is probably to blame for the popularity of the spic spelling here. The original spick spelling reveals that there is no relation between this phrase and the ethnic slur. Spick and span, in fact, dates back to at least the 16th century when Samuel Pepys (pronounced "peeps") used it in his famous diary. Prior to that it was span-new. What exactly does that mean? Well, a span was a wood chip, and such chips were used to make spoons. Something that was span-new was a freshly cut chip or, metaphorically, anything as new as a freshly cut chip. This term dates from at least 1300 in the metaphorical sense. Spick was added in the 16th century, though why is not exactly known - perhaps for the alliterative sense. A spick was a spike or nail, and something that was spick and span was neat and trim. The "clean" sense appears to have arisen only recently.

The more you know.

SQUAW

If Daniel Snyder decides that he wants to remain in the business of offending Native Americans, he could do worse than to invest in the Squaw Valley Development Company. Their trademark was upheld despite the fact that the term squaw can be considered highly offensive. The reasoning used to uphold this trademark was that there was little evidence that Native Americans found the specific use of squaw in Squaw Valley to be offensive.

If you're violently opposed to trashing your Redskins Starter jacket, this seems to be the decision that you want to cling to. Containing the invisibly fine distinctions of our finest legal writing, the case stands for everything that is often incomprehensible about our nation's laws.

DYKE

It took nearly three years for Dykes on Bikes to register their trademark. For good reason, given the precedents previously discussed. The USPTO ruled that the term dyke had ceased being offensive to the lesbian community. Thus, unlike heeb, dyke had been completely co-opted or accepted by the community which was targeted by its use.

Interestingly enough, the biggest challenge to the trademark came from a male lawyer, who sued in 2007 calling the mark "disparaging to men." I imagine that this lawyer is the type of guy who peppers his interminably delivered grievances with phrases like "but the blacks get to say it."

FAG

You can't have one without the other. The flip side to the homophobic coin was allowed as a trademark for use with grooming products. An acronym for Fabulous and Gay, I have no idea why this wasn't submitted to the same scrutiny as Heeb Media. Law!

BLACK TAIL

At the intersection of Misogyny Street and Racism Road lies Black Tail magazine. The magazine, which seems to exist solely to commit to paper what Too Short commits to wax, is an adult magazine that features black women. Its trademark was upheld by the USPTO despite the objection that the name was disparaging of black women. If you were looking for evidence that we are a pedantic doomed species, you'd be hard-pressed to do better than this excerpt from the Trademark Trial and Appeal Board's decision:

As opposer admits, there are non-vulgar as well as vulgar meanings of “tail” which could be considered relevant to an adult entertainment magazine. However, opposer asserts that because of the nature of applicant’s goods, the Board committed error in stating that “in view of the existence of an alternate, non-vulgar definition of ‘tail,’ we cannot conclude that it is the vulgar meaning that the relevant public would attach to the mark.”

No one on their death bed wishes they had spent more time arguing over the non-vulgar meaning of "tail." At least, no one should.

And now, a word from our sponsor: Uncle Jemima's Pure Mash Liquor.

SAMBO

Like the Coon Chicken Inn, Sambo's was a chain of restaurants that sold food and racism. Unlike Coon Chicken Inn, Sambo's was widely successful. In 1979, the chain had over 1,000 restaurants across the United States. You can see how some people are so passionately opposed to political correctness when you consider just how recently Sambo's restaurants dotted the American landscape. In fact, you can see just how restaurants like Sambo's presented a sly kind of racism as a salable commodity. And not even racism, but transgression. Most think Hooters is selling sex, but that's not true. It's selling a crude transgression built on sex. And wings. Transgression and wings.

Sambo's possessed a valid trademark despite their patently offensive name. That didn't stop various protests, including this one reported in the Toledo Blade from 1979. The founders of the chain claimed that the name had sprung spontaneously from a combination of their names, Sam Battistone and Newell Bohnett. History is merely glad that their names weren't Nick Battistone and Newell Ggerstein. Which brings us to...

NIGGA

You saw this one coming, right? The totemic slur, a slur whose resilient power is remarkable. But is it... trademarkable? (ugh)

In 2006, Damon Wayans attempted to register the name "nigga" for a clothing line. His attempt was unsuccessful. On a completely related note, I dressed up as Homey the Clown for Halloween when I was 10 years old. It's either proof of my relative non-racism or my complete stupidity that I thought a white kid could pull that costume off. I wasn't black under the clown paint. I was just a clown. Holding a sock. I didn't see Damon Wayans' blackness as integral to the character, I guess. Or my mom saved me from blackface. I don't really remember how that costume came into being.

At any rate, the debate over the trademarking of "nigga" touches on all the same points debate over the word itself touches on. Whether in-group use and dropping of the "r" means anything was taken into consideration at the time Wayans' trademark was denied.

But the debate also pointed the way forward for Daniel Snyder in lieu of his recent defeat. Trademark or no, a businessman makes do. Is Snyder half the businessman Keon Rhodan is?

If Wayans succeeds in persuading the Trademark Office to permit the mark, he may have to deal with Keon Rhodan, a 29-year-old entrepreneur in Charleston, South Carolina, who has been using "Nigga" on a line of T-shirts, hoodies and other attire for six years in a part-time, trunk-of-his-car business. Rhodan attempted to register "Nigga'Clothing" as a trademark in 2001 and was denied by the Trademark Office. "They said it was disparaging," he said. Rhodan, who is black, said that he's sold around 2,000 of the shirts at events. When he began selling the shirts, emblazoned with the term "Nigga," he thought he would take criticism, especially from older people. "I was in the mall with one of the shirts on, and an old lady said, 'Where did you get that shirt from?'" he said, expecting the worst. "She followed me to the car and bought five shirts for her grandchildren."

Racism and trademark law, so difficult to predict.

The above is a mere introductory course on trademark law and slurs. For a master class, definitely check out this primer produced by the law firm of Proskauer Rose and this article in the Florida State University Law Review.