{"id":5723,"date":"2018-10-02T10:45:03","date_gmt":"2018-10-02T14:45:03","guid":{"rendered":"http:\/\/ncjolt.org\/?p=5723"},"modified":"2020-06-04T20:52:30","modified_gmt":"2020-06-04T20:52:30","slug":"lanham-act-lead-conversation-racism-cultural-appropriation-just-let","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/lanham-act-lead-conversation-racism-cultural-appropriation-just-let\/","title":{"rendered":"The Lanham Act Could Lead the Conversation on Racism and Cultural Appropriation, If We Just Let It"},"content":{"rendered":"

On Friday, September 7<\/a> the U.S. Patent and Trademark Office asked the U.S. Supreme Court to overturn a December 2017 ruling by the Federal Circuit that found Section 2(a) of the Lanham Act\u2019s bar on \u201cimmoral or scandalous\u201d material in violation of the First Amendment. In this 2017 case, the Federal Circuit found in favor of \u00a0Erik Brunetti<\/a>, who sought, and was subsequently denied by the USPTO, registration of the word \u201cFuct.\u201d The high court stated, quoting Alito, \u201cspeech may not be banned on the ground that it expresses ideas that offend.\u201d<\/p>\n

In essence, if SCOTUS allows disparaging material to be registered, <\/span>what stops brands from tarnishing other brands?<\/a><\/p><\/blockquote>\n

But there\u2019s a backstory. Not long ago, in June of 2017<\/a>, SCOTUS ruled that the federal government\u2019s ban on \u201cdisparaging\u201d or offensive language\u2014also known as the disparagement clause of the Lanham Act\u2014violated the First Amendment. With this opinion, SCOTUS allowed the Washington Redskin\u2019s to maintain its name<\/a>, after a decades-long battle<\/a> brought about by Native American activists who pressured the team to change it. The crux of the issue, of course, was the term \u201credskins,\u201d a disparaging term for Native Americans, comparable to the level of severity of racial slurs<\/a>. The June 2017 case in question wasn\u2019t even about the Redskins\u2014it was Matal v. Tam<\/a><\/em>, involving a rock band known as The Slants, who challenged the constitutionality of the above clause of the Lanham Act after being denied registration of its name on the basis of it being \u201cdisparaging\u201d\u2014in other words, racist\u2014toward individuals of Asian descent. In fact, it was here that Justice Alito claimed that \u201cspeech may not be banned on the ground that it expresses ideas that offend,\u201d espousing the offense if viewpoint-centric, and thus too messy for courts to regulate.
\nThe USPTO appropriately claims that there is a distinction between the \u201cscandalous\u201d and the \u201cdisparaging\u201d elements of the Lanham Act. However, USPTO\u2019s recent move comes as a bit of a surprise\u2014mainly, why now, in a time of nation-wide conversations on confederate statues<\/a>, would it focus on \u201cscandalous\u201d material over \u201cdisparaging?\u201d
\nDefining \u201cscandalous\u201d is difficult in this day and age. Simply from an efficiency standpoint, it is virtually impossible to keep up with what the general public\u2014blending cultures, demographics, life experiences, and personal beliefs\u2014finds scandalous, egregious, dishonorable, or shocking. As Rebecca Tushnet<\/a>, Frank Stanton Professor of First Amendment Law at Harvard Law School, puts it,
\n\u201cOne person\u2019s notion of what is scandalous would be laughable to another. Indeed, the very word \u2018scandalous\u2019 has faded from common use precisely because there so little common understanding of just what it now conveys, as opposed to what it may have meant in Jane Austen\u2019s days.\u201d
\nThe same cannot be said about disparaging content. Again, Tushnet opines that, prior to the 2017 rulings, the disparagement clause of the Lanham Act protected all persons equally from disparagement. Now, SCOTUS\u2019s \u201cviewpoint-based\u201d stance on disparagement muddies the waters. In other words, it makes it more difficult to call out racist behavior\u2014particularly, the profitable kind. Further, a \u201cviewpoint-based\u201d stance could also defeat a major purpose behind the Lanham Act: dilution<\/a>.
\nIn essence, if SCOTUS allows disparaging material to be registered, what stops brands from tarnishing other brands?<\/a>
\nThere was a simpler time, in 2013, when it appeared that trademark law could solve socially problematic registration issues. In May of 2013, Disney filed to register \u201cD\u00eda de los Muertos,\u201d<\/a> Spanish for \u201cDay of the Dead.\u201d At the time, Disney was still creating what is now the beloved animated movie Coco<\/em>; it wanted to secure the rights for themed merchandise. Naturally, the Latino community did not take this lying down, protesting the corporation\u2019s attempt to \u201ccommercialize\u201d its culture. In fact, a petition went up on Change.org<\/a> that same week, urging people to stop Disney from appropriating and exploiting a sacred holiday; it received over 21,000 signatures in less than 24 hours. Disney quickly withdrew its application.
\nOf course, the USPTO did not have an opportunity to weigh on Disney\u2019s attempted registration, as the public took matters into its own hands before the application could get reviewed. It must also be noted that Disney\u2019s intention to commodify and profit from a minority group\u2019s sacred holiday is distinct from the \u201cdisparaging\u201d epithets such as \u201credskins\u201d and \u201cslants.\u201d However, one could speculate whether the Lanham Act would\u2019ve allowed it. Arguably, Section 2(e) of the Act<\/a>, barring a mark \u201cwhen used on or in connection with the goods of the applicant is merely descriptive or deceptively misdescriptive of them\u201d or \u201cwhen used on or in connection with the goods of the applicant is primarily geographically deceptively misdescriptive of them,\u201d could be read to ban the use of \u201cDay of the Dead\u201d outside of the context of the Mexican and Latino cultures that gave life to. We will never know, but the answer to the people seemed clear: it was not for Disney to claim.
\nSo, why now, five years later, can the NFL claim derogative term for an entire culture of persons? Instead of focusing on the nebulous meaning of \u201cscandalous,\u201d the USPTO should dig its heels into stopping profitable racism. After all, SCOTUS has come around with regards to outlawing discrimination. If history truly repeats itself, it will only be a matter of time before in recognizes the power the Lanham Act\u2019s disparagement clause has in curbing profitable racism.<\/p>\n","protected":false},"excerpt":{"rendered":"

On Friday, September 7 the U.S. Patent and Trademark Office asked the U.S. Supreme Court to overturn a December 2017 ruling by the Federal Circuit that found Section 2(a) of the Lanham Act\u2019s bar on \u201cimmoral or scandalous\u201d material in violation of the First Amendment. In this 2017 case, the Federal Circuit found in favor …<\/a><\/p>\n","protected":false},"author":1,"featured_media":5724,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5723"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=5723"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5723\/revisions"}],"predecessor-version":[{"id":6918,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5723\/revisions\/6918"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/5724"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=5723"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=5723"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=5723"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}