23
Feb/06

Smile When You Say That


Wired article on Damon Wayans filing for the mark NIGGA for various goods. He has several months to respond to an office action that rejects the application on Section 2(a) ‘immoral or scanadalous matter’ grounds (well known to those following the DYKES ON BIKES matter).
The DYKES ON BIKES application was approved for publication but was recently opposed. We don’t have an (even uncitable) TTAB ruling yet on that applicant’s position. Evidence was submitted to establish that use of the terms DYKES by a lesbian social group was empowering, not disparaging. This evidence can support two related but distinct arguments:
1. The term is not disparaging if used by members of the ‘target’ group;
2. That members of target group would wish to use the term is evidence that cultural standards have evolved such that the term is no longer disparaging (for purposes of Section 2(a)).
Both statements may be true but one concern I have is the fact that terms such as DYKES and NIGGA still retain their offensive qualities when uttered by certain people in certain contexts. How to reconcile that with both arguments? Are there trademarks that can only be owned by members of ‘protected classes’? Can the PTO make determinations as to who is and who is not a member of that protected class? Can such trademarks be assignable only to people who will use the term the ‘right way’?
Is the analysis for a mark that is merely the per se term, such as NIGGA, different from a term such as DYKES ON BIKES, which is, devoid of any other context, humorous?

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