Reappropriation and USPTO[i]
By: Kathy Jara, Associate Editor, Vol. 27
Linguistic reclamation[ii] of racist slurs has been described as “the process of taking possession of a derogatory label – usually introduced by a dominant group – by stigmatized group members.”[iii] Scholars believe this practice can empower marginalized groups because it “limits the dominant out-group’s control of the words and reduces their power to define stigmatized groups.”[iv] This type of self-labeling may have the effect of empowering “both the individual and the collective.”[v] However even with this possible positive widespread impact, the reappropriation of harmful terms can divide communities. Individuals of the same marginalized groups may feel differently or torn about this movement.[vi]
U.S. trademark law highlights the divergent opinions on linguistic reclamation. There are various rules and standards one has to meet in order to successfully file a trademark.[vii] The entity known as the United States Patent and Trademark Office (USPTO) processes all these requests. More specifically, the story of the U.S. Supreme Court case: Prior to the pivotal U.S. Supreme Court Case, Matal v Tam,[viii] one such standard the USPTO utilized was Section 2(a) of the Lanham Act. This provision barred the registration of “disparaging” and “scandalous/immoral” marks.[ix] Essentially, this provision prevented slurs and offensive terms from being trademarked[x] until Tam struck it down.[xi]
The provision was famously used throughout the battle with Washington’s NFL team, formerly known as the Redskins, to change its name.[xii] The case, Blackhorse v. Pro Football, Inc., was just one of many complaints brought against the team in hopes of changing its name.[xiii] It was as early as 1993 that a group of five Native Americans brought cancellation proceedings against the marks due to its offensive meaning.[xiv] This eleven-year legal battle received a lot of public attention. On one side was the argument for ‘free speech’ and on the other was an Indigenous group and their allies.[xv] The latter looking to the government believing the court “had a responsibility to protect vulnerable and oppressed groups as well.”[xvi]
The final decision on cancellation of the team’s name was under review while Tam was being decided.[xvii] Knowing this could turn the tides, “the Redskins urged the Supreme Court to hear the case as a complementary companion”[xviii] to the Tam while it was on appeal. Ultimately, Tam overruled the Lanham provision making the legality of the name “Redskins” foolproof.[xix] Before diving into the details of Tam, it is important to note that the Redskins case had a different context than that of Tam. The individuals on the side of the NFL team were not part of the demographic group being harmed by the team’s name. Accordingly, it was not a case of reappropriation.[xx]
Tam centers on a band called “The Slants.”[xxi] Simon Tan is the leader of this Asian-American rock band; the name of the band was an attempt at linguistic reclamation of an offensive term used against Asian-Americans.[xxii] As a child, Simon Tan was bullied with this slur.[xxiii] The name of the band was not its only political statement, for the band’s lyrics reflected its stance on reappropriation as well.[xxiv]
Simon Tan details the reason for The Slants initial trademark rejection: “According to the Examining Attorney, the reason why our application was flagged for a Section 2(a) refusal was because ‘it is uncontested that applicant is a founding member of a band…composed of members of Asian descent…thus, the association.’ In other words, if we had been of any other ethnicity, our mark would not be considered disparaging.”[xxv] The reason for rejecting the initial trademark application was both very striking and puzzling to Tan. It definitely fueled Tan’s fire to bring the case up to the Supreme Court.[xxvi] After a long legal battle, the Supreme Court ruled in favor of The Slants, finding “the disparaging-trademarks provision unconstitutional, as a violation of free speech protected by the First Amendment.”[xxvii]
Notably, the Tam decision was passed during a time where many marginalized groups were facing an increase in hate crimes.[xxviii] While The Slants saw this as a victory, those facing slurs in different contexts or those more culturally sensitive, were not rejoicing.[xxix] Recall, the Redskins case was decided in favor of the NFL team, against the preference of the racial group affected.[xxx] Furthermore, after the Tam decision there was an increase in trademark applications filed using extremely offensive slurs.[xxxi] From this insight, it is easy to see why reclamation’s ‘success’ rate for self-empowerment is context-specific and subject to many social science studies.[xxxii]
Words carry deep history and meaning. A legal change positively impacting one social group does not mean it is overwhelmingly good for other marginalized groups. Will the Tam decision cause a wave of reappropriation? Or will it entrench slur uses by abusive groups? It is not clear if the 2(a) provision was aiding minorities in their quest for empowerment. The band was not the first marginalized group to feel as if the USPTO was not on their side.[xxxiii] The hope is that this new ability to register offensive names does not fall into the wrong hands. For example, even with the ability to file its name as the Redskins, the Washington NFL team has succumbed to social pressure to permanently change its name. Will this trend to listen to minority voices continue?
[i] Please note offensive terms are used throughout the article, but as sparingly as possible.
[ii] Oftentimes, reappropriation and reclamation are used interchangeably. There are subtle differences, but for the purpose of the Blog post they will symbolize the same idea of a stigmatized group ‘taking back’ power from an offensive term.
[iii] Samuel Sturaro & Fabio Fasoli, From Derogation to Reclamation: How Does Language Change?, The Inquisitive Mind (2021), https://www.in-mind.org/article/from-derogation-to-reclamation-how-does-language-change.
[iv] Dr. Vicki Huang, Trademarks, Race, and Slur-appropriation, 5 UNIV. OF IL L. REV. 1605, 1615 (2021) https://www.illinoislawreview.org/wp-content/uploads/2021/10/Huang.pdf
[v] Id. at 1616.
[vi] Reappropriation and Reclamation, “Black” Tracking, Looking Forward The meaning of “black” in America’s past and present (Feb. 29, 2016), https://pages.stolaf.edu/keywords-zinser/2016/02/29/reappropriation-and-reclamation.
[vii] Trademark basics, USPTO, https://www.uspto.gov/trademarks/basics (last visited Mar. 10, 2022).
[viii] Bill Chappell, The Slants Win Supreme Court Battle Over Band’s Name In Trademark Dispute, NPR (June 19, 2017), https://www.npr.org/sections/thetwo-way/2017/06/19/533514196/the-slants-win-supreme-court-battle-over-bands-name-in-trademark-dispute.
[ix] Huang, supra note 4, at 1608.
[x] Ira Sacks & Rachel Rudensky, In re Tam: Section 2(a) Unconstitutional Under The First Amendment, Marks, Works, and Secrets (Dec. 24 2015) https://www.marksworksandsecrets.com/2015/12/in-re-tam-section-2a-unconstitutional-under-the-first-amendment.
[xi] Id.
[xii] Erik Brady, Appeals court vacates decisions that canceled Redskins trademark registrations, USA TODAY (jan. 18, 2018) https://www.usatoday.com/story/sports/nfl/2018/01/18/appeals-court-vacates-decisions-canceled-redskins-trademark-registrations/1046758001.
[xiii] Author will refer to this legal battle as the ‘Redskins case’ due to all the different legal complaints brought against the team.
[xiv] Pro-Football Inc. v. Blackhorse, Global Freedom of Expression https://globalfreedomofexpression.columbia.edu/cases/pro-football-inc-v-blackhorse (last visitied Mar. 13, 2022).
[xv] Ruling may end Arizona woman’s lawsuit against Washington Redskins, AZCENTRAL. (June 19, 2017), https://www.azcentral.com/story/news/local/arizona/2017/06/20/supreme-court-tam-matal-redskins/411092001.
[xvi] Id.
[xvii] Andrea Shannon, Redskins seek to join Slants case at Supreme Court, The Brand protection Blog (Apr. 29, 2016) https://www.thebrandprotectionblog.com/pro-football-v-blackhorse.
[xviii] Id.
[xix] Jessica Gutierrez Alm, The Slants, The Redskins, and Free Speech for All Parties, Casetext (June 24, 2017), https://casetext.com/analysis/the-slants-the-redskins-and-free-speech-for-all-parties?q=&sort=relevance&p=1&type=adminlaw&tab=keyword&a=true&motionTypes=mtc,mtd,msj&claims=4a,3s,3d,19a&partyTypes=246,550,667&resultsNav=false.
[xx] Id.
[xxi] Huang, supra note 4, at 1608.
[xxii] Id.
[xxiii] Steven D. Schwinn, The Curious Case of The Slants, National Council for the Social Studies (Apr. 2017) https://www.socialstudies.org/social-education/81/2/curious-case-slants.
[xxiv] Id.
[xxv] Simon Tan, First Amendment, Trademarks, and “The Slants”: Our Journey to the Supreme Court, 12 BUFF. INTELL. PROP. L.J. 1, 2 (2018) https://digitalcommons.law.buffalo.edu/buffaloipjournal/vol12/iss1/4
[xxvi] Id.
[xxvii] Jeannie Gersen, Why Racially Offensive Trademarks are Now Legally Protected, The New Yorker (June 22, 2017) https://www.newyorker.com/news/news-desk/why-racially-offensive-trademarks-are-now-legally-protected.
[xxviii] U.S. Hate Crimes Up 20 Percent in 2016, Fueled by Election Campaign: Report, NBC News (Mar. 14, 2017) https://www.nbcnews.com/news/us-news/u-s-hate-crimes-20-percent-2016-fueled-election-campaign-n733306.
[xxix] Huang, supra note 4, at 1610.
[xxx] Brady, supra note 5.
[xxxi] Huang, supra note 4, at 1610.
[xxxii] Id.
[xxxiii] Huang, supra note 4, at 1610.
