Omri Ben-Shahar on Why the Government Should Register Disparaging Trademarks

Let's End Trademark Piety. Racial Slurs Should Be Trademarked -- It Will Only Reduce Their Use

Companies like to give their brands memorable names with appealing innuendo. Baby products’ names intimate softness, perfumes are branded to invoke sexuality, and cereals suggest health. As long as the marks are distinctive, American trademark law allows the creator of any brand to prevent others from using its name.

But what if the name is vulgar or pejorative? Can you register—some have tried—REALLY GOOD SHIT as a trademark for motor oil, or WIFE BEATER for T-shirts? And what if the name is culturally offensive? Can you use KHORAN for wine, AMISH for cigars, or REDSKINS for a sports team? The answer is yes and no.

Yes—these names are distinctive and the owners of the brands can sue anyone who uses them without permission, even if they are not registered. But No—the owners cannot register these “scandalous” marks with the Federal government. Registration gives trademark owners some additional protection (for example, to insist that the Customs Service block importation of fake goods). Unable to register vulgar, pejorative, or offensive trademarks, these brands are at a disadvantage.

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