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Description

Since 1967, Pro-Football has registered six marks that include the term “redskins,” a derogatory racial epithet that refers to Native Americans. The use of disparaging marks dates back to the 19th century when brands commercialized racial stereotypes, such as Aunt Jemima. Today, offensive marks, including those that ridicule race, ethnicity, gender and religion are proliferating prompting the question of what role trademark law plays in protecting the interests of diverse communities. Section 2(a) of the Lanham Act prohibits the registration of marks that consist of matter that may disparage or bring into contempt or disrepute any person, institution, or belief. In this chapter, I review the policy goals and challenges in barring the registration of offensive marks and conclude that trademark law can play an important, albeit limited role in fostering diversity. U.S. trademark law only seeks to regulate the registration and not the use of offensive trademarks. Nevertheless, the symbolic gesture of the federal government cancelling the registration of a mark on the basis that it disparages people is significant and may affect the way society views the mark. Thus the government can perform important signaling for civility without abridging the freedom of speech.

ISBN

9781107588479

Publication Date

2015

Book Title

Diversity in Intellectual Property: Identities, Interests, and Intersections

Publisher

Cambridge University Press

Keywords

trademark law, disparaging marks, Redskins, trademark registration, Lanham Act, morality, scandalous, diversity, USPTO, Native Americans

Disciplines

Civil Rights and Discrimination | Entertainment, Arts, and Sports Law | Indigenous, Indian, and Aboriginal Law | Law

Registering Offense: The Prohibition of Slurs as Trademarks

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