The oddities of trademark law

by on August 3, 2017 at 12:46 am in Law | Permalink

Offensive words and phrases can be trademarked, and some people are trying to do this to keep such jargon out of broader circulation:

A spokesman for the U.S. Patent and Trademark Office said the office does not comment on trademark applications. Applications for trademarks flagged under a “scandalousness provision” can still be denied, the spokesman said.

Bordenave said he has filed many trademarks for phrases and logos that might prove profitable — radio frequencies, for example, and the phrase “New Orleans Tricentennial.” (The city will celebrate its 300th birthday next year.)

His idea: Build a brand around the n-word by including it discreetly — in T-shirt collar tags or fine print on water bottles, for example — on products emblazoned with larger, positive messages like “UNITY.” He said consumers would learn that, by buying such products, they were keeping the epithet out of more visible circulation.

This plan strikes me as ill-advised, and overly optimistic on the entrepreneurial side:

Maynard — of Snowflake Enterprises, named for a common insult of “someone with thin skin,” he said — planned to co-opt the swastika by including it on baby products. Such “social satire,” he said, could change its meaning and restrict its usage among hate groups.

“One of the hopes is that people look at the swastika flag in 10 years and think: baby wipes,” he said.

Or is there another agenda, hidden in its openness?  Here is the full story, via M.

1 Ray Lopez August 3, 2017 at 12:48 am

Fcuk You (TM) I’m patenting it!

2 Thor August 3, 2017 at 7:20 am

Funny, Ray, but alas it’s sort of been done, as there’s a FCUK line of t-shirts etc.

3 Ricardo August 3, 2017 at 10:49 am

Yeah… it was French Connection, UK.

4 Ben August 3, 2017 at 1:03 am

The very premise of this plan (and article) betrays a gross misunderstanding of trademark law.

First, registering a trademark does not give the holder the ability to enjoin non-commercial uses.

Second, the mere fact of registration is not enough to prohibit other commercial use. Particularly for a non-distinctive mark like an epithet, the holders have to build “secondary meaning” (an association in consumers’ minds between the mark and the company as the source of the goods/services) via marketing, branding, extensive sales, etc.

Third, *even if* the holders manage to build strong, distinctive marks on the backs of these epithets, there are exceptions for others’ commercial use such as nominative or descriptive fair use.

All in all, a foolish, misguided plan.

5 msgkings August 3, 2017 at 1:06 am

Shut up, idiot (TM)

6 Dan Lavatan-Jeltz August 3, 2017 at 1:07 am

The symbol is thousands of years old and the trademark would not extend beyond baby wipes, and he would have 0% market share, even among Nazi babies. I think the other guy would lose at trial, but he is basically paying down the national debt in exchange for nothing, so it isn’t that harmful. He has to use the mark in commerce before registering it, otherwise he lied on his application and the mark is not enforceable.

7 kevin August 3, 2017 at 1:48 pm

How is it paying down the debt if it comes in as revenue and immediately leaves as an expense paying salaries to analyze, communicate, and ultimately rule on the matter?

8 prior_test3 August 3, 2017 at 2:06 am

‘He has to use the mark in commerce before registering it’

You mean he needs to put up a web site, then make a couple of sales? Sounds like an extremely difficult hurdle to jump, doesn’t it? Especially since he already has this part covered – ‘It is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale’

9 dan1111 August 3, 2017 at 5:52 am

It’s not always so easy in practice to make even “a couple of sales”. Reportedly even his mother was unwilling to buy a pack of nazi baby wipes.

10 prior_test3 August 3, 2017 at 6:21 am

Actually, in all honesty, I had been thinking about the t-shirts (my mistake). But assuming the Nazi wipes guys knows a couple of people willing to go along (think special introductory offer, 10 cents a pack, free shipping, etc.), it is not really all that much a problem. I’m fairly sure that the USPTO is unconcerned about straw buyers, and the value of the commerce is not determinant – at least when reading around this link https://www.uspto.gov/trademark

After all, the fees – https://www.uspto.gov/trademark/trademark-fee-information – are going to cost considerably more than the cost of selling a few packs over the web.

11 JR August 3, 2017 at 2:34 am

Privatized censorship? What will prevent hate groups from merely developing new symbols. The ideology seems to be significantly more problematic than the specific symbols used to communicate it.

12 dan1111 August 3, 2017 at 5:53 am

+1, hit the nail on the head.

13 prior_test3 August 3, 2017 at 6:37 am

‘Privatized censorship?’

‘Just Don’t Do It (TM)’ will undoubtedly allow Nike’s lawyers the opportunity to have more success in shutting that down than Radio Shack’s in this case – https://en.wikipedia.org/wiki/Bianca.com

14 Scott Mauldin August 3, 2017 at 9:25 am

True, but negotiating and agreeing upon shared symbols to unite an ideology is not an instant or costless endeavor.

15 dan1111 August 3, 2017 at 11:01 am

Neither is developing a line of ironically offensive products and convincing people to buy them.

16 Dallas August 3, 2017 at 1:13 pm

With trademarks, copyrights, and patents being property, why is it not taxable every year. These properties can generate income just like a machine I buy for my business that I am forced to pay property taxes on the value every year.

The owners could set the “value” of the copyright, trademarks, and patents, but must be willing to sell them at that price. A little 1% of value tax per year would separate the truly valuable copyrights, trademarks, and patents from the garbage that is just used to inhibit creativity and innovation by others.

The whole purpose of the law was to increase innovation and economic creativity but has evolved into blocking competition and innovation.

17 Urso August 3, 2017 at 2:34 pm

I’ve long argued that the compromise around the “perpetual copyright” problem should be to tax copyrights after the first n years, with a slightly increasing tax every year. If your copyright isn’t worth paying the tax on, you can let it expire and it enters the public domain. If the copyright really is that valuable – looking at you Mickey – than you should be willing to pay the thousands, then millions, of dollars necessary to keep it valid for decades and decades.

18 OldCurmudgeon August 3, 2017 at 4:51 pm

Small inventors / small businesses would hate it…They imagine (sometimes correctly) that they have a $1M or $1B idea, but wouldn’t have the cash to pay your tax.

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