Registering Offense: The Prohibition of Slurs as Trademarks

Protecting and Promoting Diversity with Intellectual Property Law, (Irene Calboli & Srividhya Ragavan, eds., Cambridge University Press 2015)

27 Pages Posted: 3 Jun 2014 Last revised: 14 Oct 2019

See all articles by Christine Haight Farley

Christine Haight Farley

American University - Washington College of Law

Date Written: 2015

Abstract

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.

Keywords: trademark law, disparaging marks, Redskins, trademark registration, Lanham Act, morality, scandalous, diversity, USPTO, Native Americans

Suggested Citation

Farley, Christine Haight, Registering Offense: The Prohibition of Slurs as Trademarks (2015). Protecting and Promoting Diversity with Intellectual Property Law, (Irene Calboli & Srividhya Ragavan, eds., Cambridge University Press 2015). Available at SSRN: https://ssrn.com/abstract=2443423

Christine Haight Farley (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States
202-274-4171 (Phone)
202-274-0830 (Fax)

HOME PAGE: http://wcl.american.edu/faculty/farley

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