May 14, 2014

Is it unconstitutional to bar trademarking "Stop the Islamization of America" because it's "disparaging to a substantial composite" of Muslims?

Eugene Volokh expresses the "tentative view" that 'the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional."
Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones

15 comments:

MadisonMan said...

Would "Stop the Christianization of America" be okay?

The answers to both questions should be the same.

(Both are okay, IMO)

rhhardin said...

Get rid of intellectual property law and the problem goes away, along with a lot of others.

RecChief said...

When did the Constitution and Bill of Rights include the right to not be offended or disparaged?

damikesc said...

Agree with rhhardin. We need to DRASTICALLY overhaul IP law. Treat all IP the way you treat drugs. No trademark/copyright should be effectively permanent.

RecChief said...

rhhardin said...
Get rid of intellectual property law and the problem goes away, along with a lot of others.


But then there wouldn't be work for people who read and interpret arcane language to make a living after finishing law school in the bottom 3 quintiles in Law School, enrollment would drop, there would be less lawyers, attorney lobbyist organizations would have less members and less money, the number of regulations would drop and be simpler to read, the courts would have less work load, and law professors would be out of work.

Can you live with such a frightening future for the elite of our society - lawyers?

damikesc said...

But, yes, inflammatory things don't warrant copyright protection.

There is a wide difference between allowing it and protecting others from using it.

Ann Althouse said...

@MadisonMan

The statute allows the board to reject the application if the proposed trademark "[c]onsists of or comprises … matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

And courts have translated this into
the disparagement of "identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group."

Obviously, if the disparagement of different groups is getting different treatment, it would be much easier to say it's unconstitutional. That's what Volokh is getting at with his distinction between content-based and viewpoint based limits.

tim maguire said...

Would the USPTO approve "Stop Impoverishing the Public Domain by Taking Away Common Phrases and Giving Them to Private Entities"?

Trademark rights should be reserved for made up words and phrases. If you are the first person to say it then you can build your business around it. Otherwise, you can still use it, but the public owns it.

Ann Althouse said...

"Would the USPTO approve "Stop Impoverishing the Public Domain by Taking Away Common Phrases and Giving Them to Private Entities"?"

Who got the trademark on Tea Party?

Skeptical Voter said...

Well only the "correct" kind of thinking is permitted these days.

R. Chatt said...

Would "Sharia for America?" have been approved? Is that disparaging? What about without the question mark? "Sharia for America"

MadisonMan said...

I was unclear. I don't have much of an opinion on trademarking that slogan (other than noting that if it's banned/accepted it should be for any religion, and I'll come down on the side of allowing it).

My assumption is that disallowing its trademarkability (Did I just make that word up? Can I trademark it?) does not lead to disallowing it in general, which is what I was misreading the post to be about when I first commented.

Lucien said...

I don't do IP law, but the question is not whether anyone can use the phrase in question in commerce, is it? Instead, wouldn't the availability of a trademark allow the owner to keep others from using the same phrase without permission from the owner?

If so, then the current doctrine is one that makes it easier for more people to use the disparaging phrase, even though it also makes in less remunerative for the proposed trademark owner, right?

Michael said...

Why on earth should this be subject to trademark, whether it is disparaging or not or to whom? It is a complete sentence of (reasonably) common words with no creative or product-specific content whatever. This is just jumping in front of a parade for commercial advantage and should not be allowed.

HoodlumDoodlum said...

Michael said...
Why on earth should this be subject to trademark, whether it is disparaging or not or to whom? It is a complete sentence of (reasonably) common words with no creative or product-specific content whatever.

Think harder about that one, Michael. Just Do It.