Trademarks, free speech and politics

Stop the Islamization of AmericaGlenn Reynolds:

TRADEMARK LAW SEEMS INCREASINGLY POLITICIZED. Eugene Volokh comments: “My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional.”

Perhaps.  But the STOP THE ISLAMIZATION OF AMERICA case was not the one to test that proposition, for a couple of reasons.  As I explained in my original post on the subject:

Forget the politics of this.  Besides the fact that I have no idea why these two thought a word trademark (as opposed to protection for the logo) was needed here — being dubious, as I am in general, to the extension of trademark protection to words people say to mean things in English — I’m not too surprised about the outcome of their application on the “scandalous or offensive” denial.

This is because, as I’ve written before (and of course I’m in good company), while the PTO’s criteria for “scandalous and offensive” denials under Section 2(a) of the Trademark Act are a conceptual and a practical mess, the outcome’s certainly predictable when it comes to racialethnic or other “protected class” categories:  Only the politically correct need apply.

That’s a “criterion” Pam and Bob are not going to meet!

I have elaborated on that point considerably in light of my involvement in the appeal over the PTO’s denial of the trademark THE SLANTS, of course, such as here.

And then there’s don’t-forget-the-politics-of-this:  The ones here just stunk too much.

No less importantly, so did the “trademark” application.  What were the “goods or services” described in the application?  “Providing information regarding understanding and preventing terrorism.”  Really?  Was Pamela going use that as a trademark? (She already used it as the title of a book, but that, it is well established, is not an appropriate subject for trademark protection.)  Or did she just want to coin a phrase and somehow monetize it, consistent with the widespread public misunderstanding (TRAYVON trademark, anybody?) of what trademarks are and under what circumstances they’re entitled to protection?

Eugene Volokh, of course, is right about the politicization of trademarks — in both directions.  The TTAB’s decision in the SLANTS case, discussed in detail in our appeal brief to the Federal Circuit, wrestles with the issue regarding the PTO’s political correctness quite explicitly.  But applicants for trademark registrations that are merely political statements have some learning to do, too.

Well, I’m trying my best!

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Author:Ron Coleman

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