# Since trademarks can be revoked because of offensiveness, can copyrights be voided for offensiveness **URL:** \ **Category:** In My Humble Opinion\ **Created:** [June 19, 2014, 7:19pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162 "2014-06-19T19:19:27Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 20, 2014, 7:04am UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/21 "2014-06-20T07:04:53Z")
> [@Stringbean](#): > > So the left wants to argue that bullying a corporation’s potentially offensive speech (Mozilla’s CEO contributing to anti-SSM causes) is the market exercising free speech. I don’t know what the left argument is. You could ask them I suppose. My argument is that private citizens have the right to be racists if they choose. But the government has no obligation to assist them when they are racist. So the Washington Redskins have the right to choose a racist trademark. And the government has the right to choose to not accept a racist trademark for registration. If the football team wants government trademark registration it has to comply with the government rules for registration. The government can reasonably refuse to register a trademark it considers offensive. Calling this an issue of free speech is nonsense. If this was about free speech then the government would allow everyone to use any trademark they wanted - that’s free speech. Trademarks are about limiting free speech in order to protect property ownership. ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [June 20, 2014, 7:06am UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/22 "2014-06-20T07:06:52Z")
By international agreement (Paris Convention), there are many restrictions on what cannot be registered as a trademark in contracting states. For example, flags of countries, seals of international organizations and royalty, etc. Most countries also have restrictions on registration of trademarks that are somehow offensive or against public morals. That usually manifests as swear words, insults, provocations or pornographic logos. I once came across a Japanese trademark registration for the words “GO FUCK YOURSELF”. The registrant had cleverly gotten it past the Japanese Patent Office by writing it in bubble-style font, slightly squished together, and then turned it upside down. Looking at it that way, to someone whose native language is not English, it just looked like an abstract design. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 20, 2014, 12:03pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/23 "2014-06-20T12:03:36Z")
> [@Little\_Nemo](#): > > My argument is that private citizens have the right to be racists if they choose. But the government has no obligation to assist them when they are racist. But is it really government “assistance”? The default position is that a trademark (or a copyright) is registered. For the government to say that speech involving X cannot be registered (or copyrighted) then the government is giving preference to the “anti-X” position and making sure that a non-zero quantity of “X” speech is not making it into the public sphere of ideas. Only the most Scalia-esque of textualists wouldn’t see that the power of government by regulatory rule doesn’t achieve the same results as by an outright ban. Would you take the same position were it religion instead of speech? What if government gave tax breaks to Christian churches but not to Islamic ones? Sure Muslims have the right to attend mosque, but the government doesn’t have to assist them, right? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 20, 2014, 12:10pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/24 "2014-06-20T12:10:36Z")
> [@jtgain](#): > > But is it really government “assistance”? The default position is that a trademark (or a copyright) is registered. Nope. Nope. Nope. The statement might be more true of copyrights, but it’s definitely not true of trademarks. Trademarks are _examined_ before they are registered to ensure that they meed the criteria for registration. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 20, 2014, 12:27pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/25 "2014-06-20T12:27:57Z")
> [@Acsenray](#): > > Nope. Nope. Nope. > > The statement might be more true of copyrights, but it’s definitely not true of trademarks. Trademarks are _examined_ before they are registered to ensure that they meed the criteria for registration. Very true, so I should rephrase. Yes, trademarks are examined, but they are examined to make sure that they comply with government regulations. If those regulations favor one form of speech over another, then the regulations get into dicey constitutional territory. In your experience, what is the test for offensiveness? Does the design have to be offensive? The words on the design? An argument could be made that anything trademarked by the Ku Klux Klan is per se offensive. Even if they redesigned their logo to be a picture of the sun rising in the background with the words, “Ku Klux Klan, Since 1866” in the foreground, a good argument could be made that minorities are offended by such a thing. Does the government go THAT far in applying the offensiveness test? ---
**Author:** ![Stringbean](https://avatars.discourse-cdn.com/v4/letter/s/d6d6ee/32.png) [@Stringbean](https://boards.straightdope.com/u/Stringbean)\ **Post date:** [June 20, 2014, 4:28pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/26 "2014-06-20T16:28:36Z")
> [@Little\_Nemo](#): > > Calling this an issue of free speech is nonsense. If this was about free speech then the government would allow everyone to use any trademark they wanted - that’s free speech. Trademarks are about limiting free speech in order to protect property ownership. It is absolutely an issue of speech. The market determines the offensiveness of a trademark, not a 3-panel judge in Washington. This panel has abrogated our right to voice discontent through our dollars. Mozilla paid a price due to market forces (as it should be). The Redskins are paying a price due to political forces. This is not how the system should work. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 20, 2014, 4:33pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/27 "2014-06-20T16:33:18Z")
Just to help make this discussion more concrete, this is the statute that the PTO must comply with: > [@](#): > > No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— > (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 3501 (9) of title 19) enters into force with respect to the United States. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 20, 2014, 7:50pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/28 "2014-06-20T19:50:42Z")
> [@jtgain](#): > > Very true, so I should rephrase. Yes, trademarks are examined, but they are examined to make sure that they comply with government regulations. If those regulations favor one form of speech over another, then the regulations get into dicey constitutional territory. > > In your experience, what is the test for offensiveness? Does the design have to be offensive? The words on the design? An argument could be made that anything trademarked by the Ku Klux Klan is per se offensive. Even if they redesigned their logo to be a picture of the sun rising in the background with the words, “Ku Klux Klan, Since 1866” in the foreground, a good argument could be made that minorities are offended by such a thing. > > Does the government go THAT far in applying the offensiveness test? As you note, the government does have regulations. And that’s fine as long as they’re reasonable regulations that are consistently applied. Is it reasonable for the government to have a regulation saying that it won’t register a trademark that is racially offensive? I think it is and many other people appear to think so as well. Would it be reasonable for the government to have a regulation saying that it won’t register a trademark that contains the color blue? Most people, including myself, would say that would be unreasonable. That’s the thing about the government. You can’t just assume the slippery slope because all of us are standing alongside the slide, collectively deciding how fast it goes. The government is only allowed to go as far as the public consensus allows it to go. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 20, 2014, 7:52pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/29 "2014-06-20T19:52:24Z")
> [@Stringbean](#): > > It is absolutely an issue of speech. Wow. The first time you said that, it was nonsense. But by repeating it, you’ve totally changed it. Now it makes complete sense. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [June 20, 2014, 9:56pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/30 "2014-06-20T21:56:49Z")
> [@Omar\_Little](#): > > Is it really? Revoking copyright would mean that others could use the work and profit from it, not ban it. But it does mean that your potential profit from you work is curtailed and the value is reduced. It creates a chilling effect on free speech by its very nature. And what if the government decides that criticism of the president is offensive speech? ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [June 20, 2014, 10:57pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/31 "2014-06-20T22:57:53Z")
I can think of some religiously oriented symbols that many of the same people having a fit about the Redskins would have a double fit if the PTO allowed. The NPR linguistics guy was on Fresh Air last night, and said that they could not find any instance of “Redskin” being used inoffensively. Not true of “Indian” or “Brave” - though there are other reasons they might be suspect. ---
**Author:** ![Bill\_Door](https://avatars.discourse-cdn.com/v4/letter/b/50afbb/32.png) [@Bill\_Door](https://boards.straightdope.com/u/Bill_Door)\ **Post date:** [June 20, 2014, 11:12pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/32 "2014-06-20T23:12:38Z")
> [@RealityChuck](#): > > But it does mean that your potential profit from you work is curtailed and the value is reduced. It creates a chilling effect on free speech by its very nature.(snip) Wait, so by letting someone else say or write the same thing you just said your right to free speech is infringed upon? I suppose you could call it the “Mooooom! He’s copying me!” defense. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 21, 2014, 1:18am UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/33 "2014-06-21T01:18:23Z")
> [@Little\_Nemo](#): > > That’s the thing about the government. You can’t just assume the slippery slope because all of us are standing alongside the slide, collectively deciding how fast it goes. The government is only allowed to go as far as the public consensus allows it to go. But as the left is quick to point out, not everything is left to the democratic process because the majority might trample on the rights of the minority. I hate racism as much as the next guy but it IS political speech. Now, vulgar slurs against a race aren’t protected so much, but it’s not very far from today’s “hate speech” laws to say that well thought out scientific racism should be unprotected speech. I think that such speech is and should be protected and further not subject to the public’s whims. > [@Bill\_Door](#): > > Wait, so by letting someone else say or write the same thing you just said your right to free speech is infringed upon? I suppose you could call it the “Mooooom! He’s copying me!” defense. It absolutely infringes upon it. Many works only get written because of a profit motive. If the government decides that position “X” is offensive and refuses to copyright texts in favor of X, then the texts that take the “anti-X” position will outnumber and dwarf the X texts. Public opinion will shift towards the anti-X position because of a government policy. You may say that is fine because it is still LEGAL to advocate for X, but substitute religion for speech and see how far you go down that road. ---
**Author:** ![Bill\_Door](https://avatars.discourse-cdn.com/v4/letter/b/50afbb/32.png) [@Bill\_Door](https://boards.straightdope.com/u/Bill_Door)\ **Post date:** [June 21, 2014, 9:37am UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/34 "2014-06-21T09:37:37Z")
> [@jtgain](#): > > (snip)It absolutely infringes upon it. Many works only get written because of a profit motive. If the government decides that position “X” is offensive and refuses to copyright texts in favor of X, then the texts that take the “anti-X” position will outnumber and dwarf the X texts. Public opinion will shift towards the anti-X position because of a government policy. > > You may say that is fine because it is still LEGAL to advocate for X, but substitute religion for speech and see how far you go down that road. Freedom of speech does not imply the right to be paid for that speech, and if we’re passing out copyrights for religious beliefs there are a couple of thousand years royalties due on a testament that used to belong to the Jews. Of course, the authors of Gilgamesh might have a prior claim. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 21, 2014, 10:39am UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/35 "2014-06-21T10:39:22Z")
> [@jtgain](#): > > But as the left is quick to point out, not everything is left to the democratic process because the majority might trample on the rights of the minority. I hate racism as much as the next guy but it IS political speech. Now, vulgar slurs against a race aren’t protected so much, but it’s not very far from today’s “hate speech” laws to say that well thought out scientific racism should be unprotected speech. I think that such speech is and should be protected and further not subject to the public’s whims. > > It absolutely infringes upon it. Many works only get written because of a profit motive. If the government decides that position “X” is offensive and refuses to copyright texts in favor of X, then the texts that take the “anti-X” position will outnumber and dwarf the X texts. Public opinion will shift towards the anti-X position because of a government policy. > > You may say that is fine because it is still LEGAL to advocate for X, but substitute religion for speech and see how far you go down that road. But you’re still making the mistake of confusing freedom of speech and property rights. Limiting freedom of speech would be something like government censorship telling people that they can’t publish something. And guess how a copyright works? The government tells people they can’t publish something because somebody else owns the exclusive rights to it. So if the government were to revoke a copyright and allow anyone to publish a work then it would removing a restriction on freedom of speech. It’s property rights that are being protected by copyrights. The government says you own a work and you have the exclusive right to it. And they will enforce this by prohibiting anyone else from publishing the work you own. It’s the government restricting everyone else’s speech rights in order to protect your property rights. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 21, 2014, 4:40pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/36 "2014-06-21T16:40:49Z")
I have gone into this in more detail in the other thread — [Redskins Trademark may be canceled. - The Game Room - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=726265) — but I believe that there are significant differences between copyright registration and trademark registration that would color this discussion on free speech. Specifically, I believe that just because the team might lose it’s trademark registration does NOT in fact make the “Redskins” trademark up for grabs, any different than it would have been prior to 1967, when the first relevant registration was obtained — remember that the Redskins had been in existence since the 1930s and they had all kinds if enforceable rights for their UNREGISTERED trademarks up until then. They could bring claims under Section 43(a) of the Trademark Act for trademark infringement (maybe also trademark dilution), false advertising, unfair competition, etc. They would still have their common law rights and their rights under state law. Losing a federal registration would make certain aspects if enforcement more complicated and burdensome, but certainly not a problem for companies with the resources of Pro-Football Inc. (Dan Snyder) or the NFL Properties (which administers all the clubs’ trademarks). ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 21, 2014, 4:48pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/37 "2014-06-21T16:48:44Z")
Also, note that this would not represent the first refusal to register under Section 2(a) for disparagement, etcetera. I don’t know off the top of my head whether the free speech question has been tested in court, but if I had to guess, I would say that a court would affirm the right of the government to refuse to register trademarks incorporation racial slurs and words such as “fuck” and “shit.” I think there’s a good chance for this particularly because the government is not in effect stopping you from establishing such a trademark (if I’m right about what I said in my previous post). It’s just denying the extra benefits of federal registration. ---
**Author:** ![Stringbean](https://avatars.discourse-cdn.com/v4/letter/s/d6d6ee/32.png) [@Stringbean](https://boards.straightdope.com/u/Stringbean)\ **Post date:** [June 21, 2014, 9:10pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/38 "2014-06-21T21:10:32Z")
> [@Little\_Nemo](#): > > Wow. The first time you said that, it was nonsense. But by repeating it, you’ve totally changed it. Now it makes complete sense. Hmm, I suppose your lack of elaborative rebuttal earns you brownie points? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 21, 2014, 9:11pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/39 "2014-06-21T21:11:39Z")
> [@Acsenray](#): > > Also, note that this would not represent the first refusal to register under Section 2(a) for disparagement, etcetera. > > I don’t know off the top of my head whether the free speech question has been tested in court, but if I had to guess, I would say that a court would affirm the right of the government to refuse to register trademarks incorporation racial slurs and words such as “fuck” and “shit.” > > I think there’s a good chance for this particularly because the government is not in effect stopping you from establishing such a trademark (if I’m right about what I said in my previous post). It’s just denying the extra benefits of federal registration. I know that I’m in the minority opinion, but the use of the words “fuck” or “shit” at least in my opinion, are not protected. A person can express his idea without the use of those offensive words. There is no need to protect offensive speech when the message can be communicated in another way. But I take issue with the idea that since the government is only conferring a benefit that it can be arbitrary, capricious, and set whatever rules it likes. Any system must comply with the due process clause. Of course I have no special right to register a trademark, but if the government sets up a system, any system, it can’t discriminate based upon political speech or any other protected reason. I don’t have a right to a trademark, but I have a right that my application to a trademark won’t be denied because the government doesn’t like my message. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 21, 2014, 10:08pm UTC](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162/40 "2014-06-21T22:08:03Z")
> [@jtgain](#): > > I know that I’m in the minority opinion, but the use of the words “fuck” or “shit” at least in my opinion, are not protected. A person can express his idea without the use of those offensive words. There is no need to protect offensive speech when the message can be communicated in another way. You can say that about any word you choose. The fact that the words “fuck” and “shit” have a very specific effect, such that you label them as “offensive” kind of prove to me that they are indeed indispensable for certain kinds of expression. “Offensive” speech _is_ protected, and, in my view, should be the _most_ protected kind of speech. > [@](#): > > But I take issue with the idea that since the government is only conferring a benefit that it can be arbitrary, capricious, and set whatever rules it likes. “Arbitrary and capricious” has a specific meaning in the law. I don’t know if you are referencing that meaning or not. It has to do with the procedural application of government authority or legal standards. In this case, I doubt you can show that the government has been arbitrary and capricious, at least in the sense meant under U.S. administrative law. > [@](#): > > Any system must comply with the due process clause. Arguably, it does comply with procedural due process. I suppose the question it whether it complies with substantive due process. Substantive due process has to do with deprivation of a fundamental right. So, I guess, the first step is to prove that denial or cancellation of a trademark registration involved a fundamental right. > [@](#): > > Of course I have no special right to register a trademark, but if the government sets up a system, any system, it can’t discriminate based upon political speech or any other protected reason. > > I don’t have a right to a trademark, but I have a right that my application to a trademark won’t be denied because the government doesn’t like my message. But you haven’t answered the initial question of whether the government has denied you a _fundamental right_. I would argue that because federal trademark registration does not in itself embody trademark rights, that it’s not denying you any right at all, much less a fundamental right. And that’s because (at least under my argument) _you can still enforce your trademark rights_, under both federal and state law. Federal trademark registration itself does not grant property rights; it does not grant free speech rights. Thus taking it away does not deprive you of a property right or free speech. [Previous page](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162.md?page=1) [Next page](https://boards.straightdope.com/t/since-trademarks-can-be-revoked-because-of-offensiveness-can-copyrights-be-voided-for-offensiveness/691162.md?page=3)