Tuesday, February 06, 2024

Recommended Reading: Michael P. Goodyear, "Queer Trademarks."

In his article, "Queer Trademarks," Michael P. Goodyear, Acting Assistant Professor at New York University School of Law and Fellow at the Engelberg Center on Innovation Law Policy, provides an enlightening analysis of the impact of Matal v. Tam and Iancu v. Brunetti on the registration of trademarks that refer to LGBTQ+ persons. With the door opened to registration of slurs as trademarks, what LGBTQ+-oriented marks have been registered? Are they affirming in nature or the opposite? [The article may be downloaded here, and it appears in 2024 U. Ill. L. Rev. 163 (Vol. 2024, No. 1)].

LGBTQ+ slurs can now be registered as federal trademarks. The U.S. Supreme Court’s decisions in Matal v. Tam and Iancu v. Brunetti permitted federal registration of disparaging, immoral, or scandalous trademarks. Appellee Simon Tam cheered, hoping that these decisions would usher in a new era of minority communities reappropriating offensive terms steeped in hate and prejudice. Others were less optimistic. Advocacy organizations, scholars, and minority groups worried that these decisions opened the floodgates to the United States Patent and Trademark Office registering the vilest and most prejudicial terms in the U.S. lexicon, ossifying hatred. Only time would tell who was right.

Now, several years after Tam, this Article seeks to answer this question for LGBTQ+ slurs. A prior study found that, following Tam, affirming uses of racially-oriented marks by in-group members predominated over disparaging ones. This Article builds on that analysis and breaks ground on examining trademark law’s relationship with LGBTQ+ persons. To date, there has been practically no trademark law scholarship on the LGBTQ+ community.

This Article presents an empirical analysis of 144 LGBTQ+-oriented trademark applications filed before and after Tam. This study finds that the number of LGBTQ+-oriented trademark applications has increased over twofold since Tam. More surprisingly, LGBTQ+-oriented marks have been unanimously affirming in nature; not a single disparaging use of the slurs in trademarks was identified over the entire nine-year period. Based on these findings, I posit that Tam and Brunetti have facilitated increasing applications for and registrations of LGBTQ+-oriented trademarks by and for the LGBTQ+ community rather than symbols of hate against it.

Read comments and post your comment here.

Text in part Copyright John L. Welch 2024.


At 4:50 PM, Anonymous Anonymous said...

A brief survey of TESS for common LGBTQ+ slurs suggests that the conclusion of "not a single disparaging use of the slurs in trademarks" is not accurate. Unless use of such language by (possibly) LGBTQ+ registrants themselves is considered not disparaging?


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