For nearly one year now comedian/actor Damon Wayans has been trying to obtain a federal trademark registration on the word “nigga”. The problem is that federal law states federal trademark registration shall not be denied unless the proposed mark “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.” What constitutes immoral, deceptive, or scandalous matter? What “disparages” a person?
Does it matter whether you are registering a term now, as in the case of “nigga” which has distinctly different connotations now, than it did one hundred years ago? Does it matter who is registering the trademark? The United States Patent and Trademark Office has just allowed the trademark “Dykes on Bikes.” An opposition has been filed to the trademark application, but the government apparently does not deem the term “dykes” as being immoral, deceptive, scandalous or disparaging in reference to homosexual women.
Would the ruling be the same if the KKK were registering the trademark as opposed to the San Francisco Women’s Motorcycle Contingent? If so, if the registration depends upon the nature of the registrant, rather than the mark itself, would a registrant be able to assign the trademark to an entity that would not have been able to register the trademark directly? Would it be appropriate to pay a third party to register and assign a mark to you that you could not have registered yourself?
These recent trademark applications have turned the trademark examination process on its head. With individuals taking ownership of terms that have been thought disparaging in the past, it appears time for some new rules and new ways of thinking about what is and what is not, a trademark worthy of federal protection.
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