I was speaking to a thoughtful, insightful person last night who asked me, “What if Simon Tam wins in Lee v. Tam and Section 2(a)’s disparagement bar is struck down, or maybe the whole provision is? Then there will be all these terrible trademark registrations. What then?”
She was not the first to ask this.
I have a couple of answers.
Yes, it bothers me that this might happen. And it bothers, or bothered, the United States Government that it might happen — including for reasons that have gotten zero attention by those discussing this case.
But when I really think about it, I am pretty sure that the result will mostly be that nothing much would change. I say this, albeit speculatively, for a few reasons:
- Observation of human nature suggests that the novelty of spending a couple of hundred bucks filing and even actually registering gross and hateful marks just because you can will wear out fast.
- You have to put a name and address on a trademark registration, or at least a lawyer does — that’s not the kind of thing that everyone is going to line up to do.
- The fact that the Sun has not been extinguished by the huge number of absolutely awful, disgusting and, yes, hateful trademarks are already registered suggests that life in our galaxy will certainly survive the addition of a small percent more.
But the main reason of all that the “floodgates” scenario shouldn’t scare anyone is this:
Failure to Function as a Mark. PTO got it right. https://t.co/4TdCl7b8Ks
— Christine Farley (@Prof_Farley) May 9, 2017
Trademark law does not give you ways to “own” clever — or asinine — phrases or slogans. Merely plastering a meme or rallying cry on some garbagio “goods” doesn’t make a catchphrase, or even the name of a real provider of goods or a service, a trademark for garbagio goods either.
Most of these would-be horror registrations are at best garbagio-goods specials. Very few people are prepared to build businesses around disgusting trademarks. Doing so is not what we call “good business.”
So, yes. It’s possible a bunch of new outrageous trademarks will slime their way through the PTO and get onto the Register.
And that’s where they will stay, to die the ignominious death they deserve — especially because, if In re Tam is indeed upheld by the Supreme Court, no one will have the slightest interest in the topic of trademark registrations besides trademark lawyers, registrants and law professors.
And the Sun will shine and shine.