Coping with the New Reality of Vulgar Trademarks

The last ban against vulgar trademarks fell recently. The U.S. Supreme Court struck down the ban on trademarking immoral and scandalous material on the ground that it was a form of discrimination against a viewpoint, which violates the First Amendment. The U.S. Supreme Court previously held that the ban on trademarking disparaging material also violated the First Amendment.

With respect to immoral and scandalous material, there are currently about 202 pending trademark and service mark applications that are for or contain the F’Word. With respect to disparaging material, there are 10 pending applications for the N’Word, and 4 pending applications for the C’Word. Not surprising that a majority of these applications identify clothing as the applied for goods.

As consumers we hold the trump card to these vulgar trademarks; namely, we don’t need to support them by purchasing the goods or services associated with the vulgar mark. But this option gives little solace to those groups of individuals that are subject to slurs and stereotypes. It does not help me when I am walking with my young daughter and have to explain to her why someone has the F’Word on their t-shirt. Unfortunately, there is no perfect solution for everyone, but there is for certain groups and that solution is to own the word.

For example, the National Organization for Women should apply for the C’Word in connection with as many goods and services for which it can support use. The National Action Network should apply for the N’Word in connection with as many goods and services for which it can support use. An Evangelical church should apply for the F’Word, although that ship has probably sailed given the large number of pending applications for the F’Word. By owning these words as trademarks, these organizations and others can enforce those rights against others that may use the words in a trademark sense. After all, someone now is entitled to own these vulgar words and have the exclusive right to use them in commerce.

In fact, the Supreme Court’s decision could have just paved the way for a new organization bent on controlling vulgar speech applying for and ultimately owning a large portfolio of vulgar trademarks. This possibility exists because the organization does not have to engage in large scale production of a good or service in order to maintain rights in a trademark or service mark. The legal requirement is that consumers associate the mark with the goods or services, but there is no required number of consumers. The Courts have said the number needs to be more than insubstantial and more than negligible.

The Supreme Court could have created a situation where one party controls vulgar trademarks whereas before no one could exclusively own a vulgar trademark.

Leave a Reply