Some Potentially Racially Offensive Terms Can’t Be Trademarked—Because They’re Too Common, Not Because They’re Racially Offensive
[Steve Maynard, who] used to work for the USPTO [U.S. Patent and Trademark Office] … [is] on a mission—quite possibly quixotic—to thwart bigots by using that experience. He’s applied to trademark both the swastika and the word “nigga.”
The swastika, he said, “is a symbol that needs to be taken seriously, and not sold for $10 at a rally for everyone to have. They would have to buy them through us, and we would charge a high rate, and if they didn’t buy them through us, we would have the right to go in and confiscate merchandise and just frustrate their purpose,” he said….
Maynard has a similar strategy regarding the word “nigga.”
He wants to “turn that word from hate into hope” by selling T-shirts bearing it.
But in In re Snowflake Enterprises, LLC, decided June 24 but just uploaded to Westlaw, the Trademark Trial and Appeal Board said no to the trademark registration; this means Maynard can’t get exclusive rights to “nigga,” though he can of course still use the word on clothing:
Snowflake Enterprises, LLC … seeks registration on the Principal Register of the proposed standard character mark NIGGA for “Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms; Bottoms as clothing; Head wraps; Headbands for clothing; Hoodies; Hoods; Jackets; Jerseys; Shifts as clothing; Tops as clothing; Wristbands as clothing” …. The Examining Attorney has refused registration of Applicant’s proposed mark … on the ground that Applicant’s proposed mark fails to function as a mark for the goods identified in the application because the proposed mark is a commonplace term widely used by a variety of sources that merely conveys an ordinary, familiar, and well-recognized concept or sentiment…. We affirm ….
Applicant claims that in Matal v. Tam, the Supreme Court “knew and accepted that this mark would register,” because the Court “had before it the express proposition that this specific mark could and would register as functioning as a trademark if the mark ‘THE SLANTS’ was allowed to register,” and because the parties and the numerous amici curiae discussed the possible registration of “‘nigger’ and its derivatives” to “illustrate minority groups re-appropriating terms considered disparaging, transforming slurs into empowering s
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