The end of your trademark application or protection can sometimes come from an unexpected source — it’s content.
Under the Lanham Trademark Act, attempts to establish or retain a trademark that is somehow offensive or unsuitable to the public are doomed to failure. However, exactly what that means can vary not only from decade to decade but from individual to individual.
You only have to look at the case of the Washington Redskins to understand the potential problems that can create — even for an established brand. While the Washington Redskins registered the trademark back in the 1960s, their legal protection was stripped away by the federal government in 2015 after the term “redskins” was deemed generally disparaging toward Native Americans. The reality is that the term was always offensive to many people. It just found greater acceptance decades ago than in recent years.
Other would-be trademarks never got past the early stage of development because of their inherently offensive nature. For example, a wine brand wasn’t allowed to trademark “Madonna” because of its religious connotations. A bra brand wasn’t allowed to trademark the name “Bubby Trap” because someone in the trademark office decided that it would offend public morals.
How can you avoid falling afoul of trademark laws when your trademark is reviewed? Ask yourself the following questions when deciding on a brand name or image that you intend to trademark:
1. Can it be perceived as scandalous?
This is obviously a judgment call, but you have to take into account the general sensitivity of the public. If a word, phrase or symbol is likely to shock and offend a lot of people, then it’s probably scandalous.
2. Is the image or word basically offensive?
Obviously, many common swear words are generally offensive to a lot of people, so just avoid those in order to be safe.
3. Is the image or term disparaging to someone?
Any term or image that’s generally used as a slur against someone’s race, gender, sexuality or other inherent characteristic should be avoided.
Keep in mind that your intentions aren’t the issue. For example, a group of Asian Americans was denied the right to trademark “the Slants” as their band name — even though they felt it was a way of empowering themselves against the racial slur. It’s the overall public perception that you need to keep in mind.