Government Should Not Deny Offensive Trademarks

| by Nik Bonopartis
Washington Redskins player on the fieldWashington Redskins player on the field

Years ago, on the otherwise forgettable sketch show "Mind of Mencia," comedian Carlos Mencia called up his local Department of Motor Vehicles and queried an employee on the availability of vanity license plates.

The n-bomb? No can do, said the DMV employee. What about a variation on that? Nope. Offensive terms for Asians or Native Americans? I'm sorry, sir, but we cannot grant your request.

Finally, Mencia told the DMV clerk he had one more name to try: "W-E-T-B-A-C-K" the comedian said, spelling the slur out in the most stereotypical Mexican accent he could muster.

"Yes, sir, that's available."

The segment ends with a faux-outraged Mencia yelling "What the ----?"

While Mencia isn't exactly known for thoughtful political commentary, he hit on an important point with that skit -- that the famously inept and tone-deaf U.S. government is quite possibly the worst judge of which words are offensive, and which words aren't.

The issue has become relevant again in 2016, as the Supreme Court prepares to take on two cases challenging the Patent and Trademark Office, which like the DMV, has somehow become the political correctness police.

It seems that patent examiners and attorneys who specialize in trademark law have now become the arbiters of what's offensive and what's acceptable.

If the Supreme Court chooses to take the cases, justices will hear from a band and a professional football team protesting the patent office's arbitrary decisions. The football team, the Washington Redskins, is familiar to anyone who hasn't been living under a rock for decades. The band is less known -- it's a synth-rock outfit comprised entirely of Asian Americans, who go by the band name The Slants.

Simon Tam, the founder of The Slants, explained his band's name to TIME magazine. The name, he said, is meant to undercut racism by taking an offensive word away from people who would use it disparagingly.

"The name came before the band did," Tam said. "I was talking to a friend of mine and saying I want to start this all-Asian band and address some underlying issues with racism. And I said, 'What do people think of when they think of an Asian? What’s a common stereotype?' He said they all have slanted eyes and I thought: The Slants. It actually sounds like a fun, 80s, New Wave-kind of band. And it’s a play on words."

While the patent office has refused trademarks to The Slants and the Redskins, it's granted trademarks to a company called Jizz that makes underwear, a bakery company called Baked By A Negro, a clothing company called Dick Balls, a saucier called Gringo Style Salsa, and a coffee company called Big Titty Blend, according to ThinkProgress.

So we live in a world where patent attorneys decide that a band ironically using a name like The Slants don't deserve a trademark, but a company called Jizz does. Does anyone else see the problem with that?

"Government efforts to prohibit registration of trademarks that are scandalous, immoral and disparaging have been inconsistent and ineffective," Megan M. Carpenter, an intellectual property law professor at Texas A&M, writes in The New York Times. "My research has shown that there are many trademarks refused on moral grounds that have also been registered by other applicants. This inconsistency arises because marks that are scandalous or disparaging to one examiner may be acceptable to another."

Carpenter is right when she points out that there's no formula, no strict boundary that separates the offensive from the non-offensive, and more importantly, that specialists who deal with arcane matters of intellectual property laws "cannot be expected to be the arbiter of a collective and ever-evolving moral standard."

The employees at the Patent and Trademark Office should be concerned with one thing -- whether an applicant's requested trademark merits approval.

Let consumers be the taste-makers, let people vote with their wallets and decide which companies are worthy of their business. If consumers are offended by a clothing company called "You Can't Make A Housewife Out Of A Whore" (which exists, per the Daily Caller), then they won't purchase products from that company. The people who founded it will have to go back to the drawing board, hopefully learning a lesson about the boundaries of taste.

Critics love to talk about government overreach, and the trademark issue is a classic case of the government sticking its nose where it doesn't belong. Let's hope the Supreme Court agrees.

Click here for the opposing view on this topic.

Sources: The New York Times (2) (3), TIME, ThinkProgress, Daily Caller / Photo credit: Cecilio M. Ricardo Jr./Wikimedia Commons

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