Registering Offense: The Prohibition of Slurs as Trademarks
Christine Haight Farley
American University - Washington College of Law
May 29, 2014
Protecting and Promoting Diversity with Intellectual Property Law, (Irene Calboli & Srividhya Ragavan, eds., Cambridge University Press, 2014, Forthcoming
American University, WCL Research Paper 2014-28
Since 1967, Pro-Football has registered six marks that include the term “redskins,” a derogatory racial epithet that refers to Native Americans. The use of disparaging marks dates back to the 19th century when brands commercialized racial stereotypes, such as Aunt Jemima. Today, offensive marks, including those that ridicule race, ethnicity, gender and religion are proliferating prompting the question of what role trademark law plays in protecting the interests of diverse communities. Section 2(a) of the Lanham Act prohibits the registration of marks that consist of matter that may disparage or bring into contempt or disrepute any person, institution, or belief. In this chapter, I review the policy goals and challenges in barring the registration of offensive marks and conclude that trademark law can play an important, albeit limited role in fostering diversity. U.S. trademark law only seeks to regulate the registration and not the use of offensive trademarks. Nevertheless, the symbolic gesture of the federal government cancelling the registration of a mark on the basis that it disparages people is significant and may affect the way society views the mark. Thus the government can perform important signaling for civility without abridging the freedom of speech.
Number of Pages in PDF File: 22
Keywords: trademark, disparaging, Redskins, registration, Lanham Act, morality, scandalous, diversity, USPTOAccepted Paper Series
Date posted: June 3, 2014 ; Last revised: June 26, 2014
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