Offensive Trademarks: Nullifying Racial Slurs or Broadening Racial Divides?
In June 2017, Curtis Bordenave filed a trademark application with the United States Patent and Trademark Office (“USPTO”) for a large number of classes covering everything from apparel to television programs.[1] As a branding consultant with trademark experience, Bordenave was acutely aware of the influential power that comes with a federally registered trademark when he applied for this trademark in June.[2] However, while he may have had previous success registering other trademarks,[3] Bordenave faced a unique challenge when he applied for his most recent trademark. Why? Because the trademark Bordenave was seeking to register was a racial slur—the “N” word.[4]
The Supreme Court recently held in Matal v. Tam that the USPTO may not prohibit the registration of disparaging terms because doing so would be a violation of the First Amendment.[5] In Matal, an Asian American rock group called the Slants wanted to trademark its name.[6] Simon Tam, the bassist of the group, claimed that they applied for the trademark in order to reclaim a slur against Asians and take away the word’s hateful power.[7] However, by recognizing the First Amendment protections of this racial slur, the Court opened the door for offensive trademarks to everyone from racial vigilantes, like the Slants, to hate groups, like the KKK.[8]
Bordenave saw the Matal decision as an opportunity to reclaim another racial slur, the “N” word.[9] His goal was to eliminate the word’s negative connotations and to allow African-Americans to profit from a word that has historically held them down.[10] Additionally, Bordenave believed he needed to apply for this trademark as a preventive measure, in order to keep groups like the KKK from applying for it and using it in a negative way.[11]
Despite good intentions, Bordenave’s trademark application has received its fair share of criticism. Marc H. Morial, the president and CEO of the National Urban League, called the application a “publicity stunt.”[12] He contended that the word is divisive and belongs “in a dark past,” and that no one should seek to reclaim it.[13]
Bordenave stated that while he understands where such criticism comes from, he remains committed to his goal.[14] He has already put the trademark on t-shirts, buttons, and other merchandise for sale, a necessary step for the trademark registration process. His goal is to build a brand around the “N” word by putting it on products that feature larger, positive messages such as “UNITY.”[15]
As Tam noted in reference to the Slants trademark, “[i]t’s a lot better to deal with a known enemy . . . than to have someone leave anonymous notes at [the] door.”[16] Bordenave sought to keep his enemies close when he applied for “N” word trademark in June and it is now up to the USPTO to decide whether the application is legitimate.
In this time of political unrest, where racial tensions are at the forefront of conversations in the media, the nullification of a hateful phrase such as the “N” word could be a crucial step towards societal unification. However, we must wait to see if Bordenave’s trademark is accepted before we can determine if his plan for the word’s dilution will succeed.
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