Posted on Tuesday 8 August 2017 by Cruickshank Intellectual Property

In a previous article we looked at the recent Supreme Court ruling in the USA for dance-rock band ‘The Slants’. The case in question saw the Oregon band take legal action over the trademark refusal of their name on grounds of disparagement. They argued that such refusal by the United States Patent and Trademark Office (USPTO) was in fact a direct violation of free speech as set out in the First Amendment. Subsequently following the Courts decision, they won their argument on 19th June 2017. This led quickly to a win for the Washington Redskins Football team whose trademarks had been cancelled on grounds of disparagement towards Native Americans. Theirs was a publicised battle, fought for many years, which finally came to an end following the successful outcome of The Slants case.

As expected however, following these legal victories, the USPTO has seen a huge rise in the number of offensive and racist trademark applications. While some may see it as an opportunity for individuals with certain racist or offensive views to capitalize on the recent court decisions, others are merely applying, with an effort to hinder such racism and in turn use such trademarks as an educational tool.

The Slants case was decided on the 19th June and on that same day numerous trademarks were filed which can be very easily considered as offensive and disparaging. One of such concerns the use of the ‘N-Word’ in which two separate applications were filed on the same day with numerous others filed thereafter.

Business Consultant Curtis Bordenave is one such individual who has garnered some media attention lately after he filed an application for this term. Bordenave originally applied for this trademark back in 2008 which was denied by the USPTO. While many may be shocked at the audacity to lay claim to such terminology, Curtis reasons his actions are out of the idea of teaching people rather than from a racist standpoint. Curtis himself stated in a recent news article with USA Today:

            ‘We are all many shades, and it has nothing to do with race. It has nothing to do with whether you’re black or white or your ethnicity. This word has affected people because of your skin colour. We want individuals to unite and support our products for the power to control the censorship of this word in commerce.”

Perhaps a more shocking trademark application made following The Slants case is that of the Swastika symbol. We are no strangers to the history of this mark and the hate it represents, which begs the question, why would anyone want to trademark it? For Steve Maynard, it is not a case of continuing this legacy but rather preventing it being put in the wrong hands and used in the wrong way. How Maynard plans to control the sale of such a brand is by charging huge amounts of money on products it would feature on, therefore hopefully preventing people from buying them. Speaking with US Media publications Maynard reasoned:

            ‘The swastika is a symbol that needs to be taken seriously, and not sold for $10 dollars 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.’

Maynard has also filed an application for the N-word, in fact he done so on the same day as Curtis Bordenvave. His reasons are like that of Bordenvave, to educate and curb racist ideology. As Maynard said himself ‘Turn that word from hate into hope.’

While many believe that such applications may never be granted it has however led people to believe that the verdict following The Slants case may now change how the decision -making process of the USPTO operates. This is turn has led to an upsurge in applications which before would have been rejected outright based on its offensive and disparaging nature but now need to be at least considered by the USPTO. It is an interesting situation we are witnessing in the US trademark landscape at the minute and opens a debate regarding the ownership of language, however one needs only to apply a quick search online for the type of words applied since June 19th to wonder how far is too far?