Everybody can have an IP blog. But hardly anybody, it seems, is prepared to do the work required to blog.
I refer now to the decision in The Slants case, which has been covered by various news outlets and a number of trademark-related blogs. To be honest, I … don’t really have time to read blogs, and I don’t. (With one exception, mainly; see below.) But The Slants do, and they send me links to blog posts about their case. And what I saw, after the first couple — with one notable exception — was that these bloggers have read the opinion, not asked themselves any particularly difficult questions, and done.
To those who came in late, your blogger represented The Slants at in the PTO and at the TTAB on this, and will be doing so in the Federal Circuit. I am not going to argue the merits of their appeal here, of course — I did that in the papers I have already submitted, and will do it in papers to come.
But I am going to argue with
bloggers people who have blogs who can’t be bothered to even think about the questions raised in the case, but simply report, “Yup, the TTAB made sure another racist word doesn’t get registered as a trademark!” How comfortable! How, you know, politically you-know-what. (Your girlfriend will really like how you came out on this one, dude!) And how little that question has to do with the issue that, in our view, was before the PTO in this application, and which was then before the TTAB.
And I’m going to argue it here: I don’t ask everyone to do as I often do at LIKELIHOOD OF CONFUSION®, which is to read the underlying papers in a case and see what was and wasn’t going on at least one notch below the surface of an opinion that purportedly decides an issue. I don’t ask them to do it because I know most of them can’t and won’t do it, aren’t competent to do it, and aren’t motivated to do it. That’s why no one reads their trademark blogs, and most people read this one. That’s why I’m just fine with it.
But if you want to see actual blog analysis, and an actual thoughtful, insightful discussion in the comments about the issue in the case of our application for THE SLANTS trademark registration (which, by the way, is only slightly about whether or not the term “slants” is derogatory) and the appeal in the TTAB, obviously the place to go is John Welch’s TTABlog — a trademark blog even more people read than this one, and a pretty darned impressive class of people, too, trademarks-wise.
I will also say the following, having already said it (I’ve edited a little here) to the reporter for Law 360 for attribution (though of course he used what he chose for the story):
We are planning an appeal to the Federal Circuit, and in anticipation of this result we have already lined up a number of civil rights groups who expressed great interest in filing amicus briefs if it came to that.
At the end of the day, the TTAB — arguably boxed in by its own policymaking in the application of this problematic statutory provision — has used the “use of the mark in context” standard to paste over a troubling result. Like the PTO, it relied on the applicant’s past “unacceptable” use of the term, which was affirmatively ethnically-focused, based on information in his earlier application and office action. But there was no evidence of such use dated after the time of the earlier refusal, and no evidentiary basis in the record concerning the new application to ascribe those earlier uses to the time of that second application.
As it stands now, therefore, there is nothing our client can do, or not do, if he wants to register the SLANTS trademark. The TTAB says he personally supplies, the offensive “context” to what is an otherwise plain English word just by being too Asian.
The argument that “we can’t have the PTO issuing ‘nigger’ and ‘heeb’ trademark registrations” proves too much. If the problem is hate speech embodied in trademark registrations, then it is hate speech that should be addressed. The law has not hesitated to address that issue in recent decades. But the present standard, as applied in this case, clearly raises a number of problems in terms of vagueness, arbitrariness and in particular an ethnicity-sensitive context that deprives the group being “protected” by the PTO of civil rights, rather than protecting them.
UPDATE: More here.