Thursday, April 20, 2006

TTABlog Cited in Columbia Law Review Note on Self-Disparaging Trademarks

The TTABlog has been cited in a Note in the March 2006 issue of the Columbia Law Review. Todd Anten, Self-Disparaging Trademarks and Social Change: Factoring the Reappropriation of Slurs into Section 2(a) of the Lanham Act, 106 Col. L. Rev. 388 (2006). [See page 389, fn. 7]. Set out below is the Abstract for the Note.

Section 2(a) of the Lanham Act bars the United States Patent and Trademark Office (PTO) from registering trademarks that "may disparage" a group of people. What happens, however, when an applicant seeking to register a trademark containing a slur is also a member of that disparaged group? Many applicants have applied to register such "self-disparaging" trademarks featuring arguably reappropriated slurs, from lesbians seeking to register DYKES ON BIKES, to an African American seeking to register NIGGA, to a Jew seeking to register THE BIG HEEB BREWING COMPANY. Under the current regime, applicants for these self-disparaging marks are treated identically to any other applicant. However, such an approach commits two serious errors: (1) It overlooks the important role that the reappropriation of slurs plays in disarming historically hateful speech and fostering a healthy self-identity; and (2) it ignores the fact that a self-disparaging mark's mere existence automatically raises evidentiary doubts about whether that mark is truly disparaging to the referenced group. This Note argues that the PTO's current approach to gauging whether a mark is disparaging does not adequately consider the special circumstances of self-disparaging marks, and proposes that examining attorneys should no longer be permitted to deny an application to register a trademark solely because the mark is self-disparaging.

Marty Schwimmer's Trademark Blog is cited in footnotes 42 and 256.


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