Since trademarks can be revoked because of offensiveness, can copyrights be voided for offensiveness

[Little_Nemo]

@Stringbean

Hmm, I suppose your lack of elaborative rebuttal earns you brownie points?

I gave you an elaborate rebuttal the first time you said it. All you did in response was simply repeat what you had already said. I don’t feel the need to repeat myself when I’ve already said what I think. If you want a new response from me, say something new for me to respond to.

[UltraVires]

@Acsenray

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.

That is just fundamentally wrong. The DMV doesn’t grant you any rights in your drivers license. However, they can’t deny that privilege based on constitutionally suspect reasons.

[Acsenray]

@jtgain

That is just fundamentally wrong. The DMV doesn’t grant you any rights in your drivers license. However, they can’t deny that privilege based on constitutionally suspect reasons.

If you are denied a driver’s license, then you are not allowed to drive, which might affect your ability to earn a living, engage in necessary chores, or engage in recreational activities. It can cost you time and perhaps money and perhaps other hardships.

If you are denied a trademark registration, no equivalent harm befalls you. Your trademark rights still exist—you have not been deprived of property—and you can still defend them under both federal and state law.*

Furthermore, the vast majority of people and entities that have or potentially have trademark rights do not have federal trademark registrations, because they are not necessary in order to defend their rights under state and federal law. Indeed, I would venture that the majority of litigants who go to state and federal court to defend their trademark rights have not registered their trademarks.

In contrast, every person who wants to drive a car must, by law have a driver’s license. And every person who wants to go to court to defend their copyright interests must register their copyright interests.

Do you see the difference? If you have reason to believe that any of these statements are wrong, then that’s a different issue, but I would like to see some acknowledgement that you understand what I am saying here.

[Acsenray]

@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?

To again quote Section 2(a) of the Lanham Trademark Act of 1946:

(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; …

So, yes, the PTO is required by the statute to determine whether trademarks submitted for registration and immoral or scandalous or might bring persons or beliefs or entities into contempt or disrepute.

Recently, the PTO denied a registration for the term “Khoran” related to alcoholic beverages, on the basis that a “significant component” of the Muslim community would find it offensive to their beliefs to have the name of their holy book associated with an alcoholic beverage, consumption of which is banned by their religion.

Also recently, they denied registration for “Asshole Repellant” for a novelty gift in the form of an (empty) aerosol can, on the basis that it was offensive.

These kinds of rulings are quite common and go back decades.

[UltraVires]

@Acsenray

If you are denied a driver’s license, then you are not allowed to drive, which might affect your ability to earn a living, engage in necessary chores, or engage in recreational activities. It can cost you time and perhaps money and perhaps other hardships.

If you are denied a trademark registration, no equivalent harm befalls you. Your trademark rights still exist—you have not been deprived of property—and you can still defend them under both federal and state law.*

Furthermore, the vast majority of people and entities that have or potentially have trademark rights do not have federal trademark registrations, because they are not necessary in order to defend their rights under state and federal law. Indeed, I would venture that the majority of litigants who go to state and federal court to defend their trademark rights have not registered their trademarks.

In contrast, every person who wants to drive a car must, by law have a driver’s license. And every person who wants to go to court to defend their copyright interests must register their copyright interests.

Do you see the difference? If you have reason to believe that any of these statements are wrong, then that’s a different issue, but I would like to see some acknowledgement that you understand what I am saying here.

I do understand what you are saying, but I disagree. If my trademark which may be very valuable is refused registration, I lose a number of legal protections which may affect my ability to earn a living in the same way some other guy must have a driver’s license to earn his living.

The government is not required to provide things like trademark registration. I have no independent right for federal trademark protection. What I do have a right to is that if the government sets up such a system, it must do so in a way that doesn’t infringe on a fundamental right. You wouldn’t say that a law providing that no Jewish people, Republicans, or blacks may register a trademark under the grounds that a trademark registration isn’t a right is constitutional, would you?

Now my view of free speech is more nuanced and unusual than most. I don’t think that things like pornography or simple vulgarity is protected. Saying “Fuck off” or “Fuck you” or “Fuck the draft” or “Kill all niggers” are merely taunts and threats with no redeemable speech value.

Showing two people fucking each other for money doesn’t communicate any idea that political discourse needs. I am certainly free to say that I don’t like you, the draft, or black people, but there is no specific need to be able to do so in a way that is insulting and threatening.

So the question becomes, is the term “Redskins” as used as an NFL team name the same as the above non protected speech? I think clearly not. I’m sure that there are a non-zero number of steel mill workers in Pittsburgh, or Texas cowhands who object to the minimization of their professions by the use of a moniker for a football team. The test should be whether society as a whole accepts such a thing as offensive or that it is clear beyond a doubt that such a trademark does nothing but offend a minority group.

Indian monikers have been used for years. For the government to invalidate a trademark in 2014 for something registered in 1967 on the grounds that it was offensive then is absurd. As I mentioned, anything registered by the KKK would be per se offensive to some. Any confederate symbol would likewise be per se offensive. This ruling opens the door to a vast power of the trademark office to rule anything against Obama as racist and therefore offensive.

The law against offensive trademarks should be reserved for only those cases with truly no redeemable speech value like “Fuck You” trademarks. When it is disputed, like Indian names for sports teams are, the government should take no part in that debate.

[Acsenray]

I disagree that "Fuck You " has no redeemable speech value. In fact I believe it has more value than any inoffensive term.

[Acsenray]

In re Mavety Media Group was about the PTO’s refusal to register “Black Tail” for a porn magazine. The court ruled that a “playful reference to the buttocks of an African-American woman” was not necessarily vulgar and was as likely a meaning of the term as “a purely vulgar, sexual reference to African-American women as sexual objects.”

It had this to say about a constitutional challenge to Section 2(a), quoting from In re McGinley:

[T]he Sec. 1052(a) prohibition against scandalous marks is not “an attempt to legislate morality, but, rather, a judgment by the Congress that such marks not occupy the time, services, and use if funds of the federal government.”

In re Fox—which affirmed refusal to register “Cock Sucker” for rooster-shaped lollipops—

Because a refusal to register a mark has no bearing on the applicant’s ability to use the mark, we have held that [Sec.] 1052(a) does not implicate the First Amendment rights if trademark applicants.

[Acsenray]

(“Section 2(a) of the Lanham Trademark Act of 1946” and “15 U.S.C. §1052(a)” are the same thing)

[Acsenray]

In re McGinley, which denied registration of an image of a nude couple kissing in which the male genitalia appeared to be exposed —

With respect to appellant’s First Amendment rights, it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. … No conduct is proscribed, and no tangible form of expression is suppressed. Consequently, appellant’s First Amendment rights would not be abridged by the refusal to register his mark.

There is, of course, a limited statutory right to registration, which carries certain benefits. Although, as applicant notes, these are more procedural than substantive, the right cannot be denied without compliance with First Amendment due process requirements.

…

In providing that marks comprising scandalous matter not be registered, Congress expressed its will that such marks not be afforded the statutory benefits of registration. We do not see this as an attempt to legislate morality, but, rather, a judgment by the Congress that such marks not occupy the time, services, and use of funds of the federal government.12
Once a registration is granted, the responsibilities of the government with respect to a mark are not ended. The benefits of registration, in part with government assistance, include public notice of the mark in an official government publication and in official records which are distributed throughout the world, maintenance of permanent public records concerning the mark, availability of the Customs Service for blocking importation of infringing goods, access to federal courts where there is a presumption of validity of the registration (e. g., that the mark is not immoral or scandalous), notices to the registrant concerning maintenance of the registration, and, to some extent, direct government protection of the mark in that the PTO searches its records and refuses registrations to others of conflicting marks. Apart from nominal fees, these costs are underwritten by public funds.

[UltraVires]

@Acsenray

I disagree that "Fuck You " has no redeemable speech value. In fact I believe it has more value than any inoffensive term.

If I don’t like you for a particular reason, there are literally thousands of ways of expressing that without resorting to a vulgar pejorative like “Fuck You.”

I could actually describe why I don’t like you which may give you a chance to respond and perhaps we would settle our differences. An easy and juvenile insult only communicates that message in a singular, offensive, and non-helpful way. This board recognizes that difference, and even in the Pit a poster may not use that term because it is simply and solely insulting.

IOW, I have every right to express my displeasure with you, but I don’t have a right to do so in absolutely any and every manner under the sun. As an extreme example, I can’t express my displeasure with you by blowing up your house, or by intruding on your seclusion by publishing private facts about you that have no public purpose.

And I would also argue that certain words, that by their necessary meaning, are so insulting as to be allowed to be prohibited in public discourse.

[Acsenray]

This exact same argument applies to what you’re calling political speech. You can express unpopular political ideas using less inflammatory language.

And this board likewise regulated the usage of such words under the label of hate speech.

1. trademarks are a step removed from the meaningful content of political speech. It is just the banner or label that you are transporting them in.

2. a concept central to trademark law is “secondary meaning,” which acknowledges that in theory over time any arbitrary label can come to signify a particular source of goods. Thus it gives you the flexibility to choose a label (a non-disparaging and non-immoral label, if you want registration) and imbue that label with meaning, specifically, the information relating to its origin. Given that the law bans exclusive rights in terms that literally describe the goods or services in question (that’s what genericness is all about), the vast majority if trademarks do exactly that. So if you want to market unpopular ideas, you can do what every other trademark holder does and use your trademarks in such a way that it acquires such meaning. The word “Fox” for example has no intrinsic political meaning and it was used for decades before News Corp. decided to imbue it Roth the notion of conservative politics.

3. and, as always, you can still use your unregistered trademark. No one will stop you and you will not lose your trademark rights.