People are filing trademark applications to “own” the swastika and the n-word

Nine applications to register derogatory words and symbols have been filed with the US Patent and Trademark Office following a US Supreme Court ruling in June that barring such trademarks was unconstitutional.

The n-word and swastikas are among the culturally charged imagery and language that both individuals and companies are attempting to register for products, including energy drinks, sweatshirts, and fragrances, Reuters reports.

In all, seven applications for versions of the n-word have been filed with the Patent and Trademark office since June 19, along with an application that included a Chinese slur and the emblem of the German Nazi Party.

Federal registration protects parties against the unauthorized use of their trademarked brands. In these cases, that would include the use of or profit from privately owned, discriminatory language. There are stipulations to getting and keeping a registered trademark, however.

If an applicant has never used the trademark prior to registering, they have six months from when the Patent and Trademark Office preliminarily grants the application to offer evidence of actual use. Once you become the owner of a federally registered trademark, you are required to continuously use it. Failing to do so after three years of non-use — and no proven intent to resume — results in the determination that your trademark has been abandoned.

Before the trademark is even reviewed, the application process requires registrants to ensure the trademark is not “ornamental.”

So, for example, it someone “decides to put drawings of buildings all over one particular pair of sneakers because it looks good, that is ornamental and not a trademark use and doesn’t give exclusive rights to use buildings on sneakers.” Brad R. Newberg, an intellectual property partner at the law firm of McGuireWoods LLP, told Vox in an email.

All applicants for registered trademarks must also prove there’s a relationship between the brand, the brand’s product and consumers’ connection between the two. An image or word’s wide use by others can bar a registration application from being approved.

“If a design or word is widely used by others (as the swastika is), the USPTO is likely to refuse to issue a trademark registration for that mark, since it won’t be seen by consumers as source identifying,” Aaron Johnson, a trademark attorney with Lewis Roca Rothgerber Christie LLP, told Vox in an email.

Prior to the June 19 ruling, the office had regularly dismissed applications “which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute,” under Section 2(a) of the Trademark Act of 1946. Also known as the Lanham Act, the law regulates trademarks, service marks, and unfair competition.

On June 19, that practice was officially upended with the case of Matal v. Tam. In a unanimous decision, all eight Supreme Court justices (Justice Neil Gorsuch did not take part in the vote) agreed that the disparagement provision “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The full article first appeared at Vox on July 31, 2017

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