Standards? We Don’t Need No … er … Stinkin’ Standards

There will always be an England, I guess, but the land once known for its stiff upper lip seems to be slouching along with the rest of us toward that slack-jawed permissiveness so popular among us Western infidels.

The issue, of course, is FCUK. We first blogged on this topic almost a year ago. The returns are in:

FRENCH CONNECTION has held on to its controversial FCUK trade mark after a legal case during which it was claimed the brand name was just too rude.

The Patent Office today ruled on a challenge to continuing use of the FCUK name on watches and jewellery, seven years after it was introduced by the retailer.

. . .

Retired Surrey businessman Dennis Woodman filed a case to prevent its use and to have it struck off as a trade mark on the grounds it was ‘contrary to accepted principles of public morality’.

Woodman claimed it was the name was in breach of the 1994 Trade Marks Act. But counsel for FCUK argued the brand was intended as a ‘lighthearted and humorous play on words’, which had become ‘entirely mainstream’.

Entirely mainstream? Not in my stinkin’ house.

The issue of whether there should be any — is the word even permitted any more? — standards regarding what can and cannot be registered as a trademark, besides legal trademark standards, recently re-emerged in the U.S., too. Naturally the issue came up for discussion on the International Trademark Association (INTA) email discussion list, and naturally Likelihood of Confusion had an opinion on the matter. On December 13th I wrote this, referring to an earlier post as well as another recent controversy involving the definition of “scandalous matter” that is ineligible for registration under section 2(a) of the Lanham Act, the dispute over the Washington Redskins trademark:

I agree with Tom about the silliness of much of this, e.g., the Redskins case. But, with all due respect to Godwin’s Law, isn’t it the case that there are some marks or some conceivable marks that we don’t want the government giving any sort of legitimacy or imprimatur to? Think Nazis, think Al Qaeda, think child molesters, etc., etc. If necessary appeal to the politically correct side of yourself and you will find the trademark that should not be registered.

There is no constitutional requirement that free speech is entitled to trademark protection, nor is there a First Amendment basis (as I believe some people think there may be) to the existence of “standards” and even moral judgments in the administration of government. Yes, slippery slopes require us to draw lines and sometimes to fight over where those lines should go, and perhaps from time to time be unhappy with the result, but is that a reason to despair entirely of the endeavor?

Professor Darryl Wilson from Stetson University College of Law essentially agreed, fleshing out the issue as follows (he gave me permission to post his comments here):

I agree that some cases are silly, since its true that registration of a mark has no direct bearing on the offering of the goods or services, but I think it is as silly or more so to deny the power of the governmental imprimatur of acceptability which is what trademarks (and much of IP) are as much about as the right to exclude. There is also the realization that IP generally and trademarks especially deal with relative positions of economic status in society thus letting the market sort it out is not really adequate since many of those offended are without the economic and attendant political power to change the situation. Looking to certain percentage benchmarks is one idea of addressing the problem. It has faults as does every approach but it’s better than expecting government, driven by economic repercussions to do the right thing.

African Americans are arguably 15% of society and certainly were not what the Sambo’s restaurant chain looked to as their primary customers but Sambo’s ultimately was forced to stop using that mark. Native American Indians are even less populous but have had some success with certain marks such as Crazy Horse beer, and some team mascots on the college level. I am saddened but certainly not amazed that the Washington Redskins have so staunchly refused to change their mark. If the Bullets can do it so can they. Heck, the Bullets didn’t even have a direct human representative complaining. 2(a) doesn’t need new adjectives because regardless of what’s there it will always require ad hockery but the government can’t escape cultural side taking because the government is there to maintain structure in society and society and culture are inextricably intertwined.

I think he’s right.

UPDATE: In other news….