Your readers may be interested in a recent US development which will allow insulting terms to be registered and protected as US trade marks and, by extension, brand names for goods and services.
The US Supreme Court has ruled that the law which prohibited the registration of trade marks that may ‘disparage… or bring… into contempt or disrepute’ any ‘persons, living or dead, institutions, beliefs, or national symbols’ offends the fundamental first amendment principle that speech may not be banned on the ground that it expresses ideas that offend.
A US rock group whose members are of oriental descent applied to register their name ‘The Slants’ (a derogatory term for people from the far east) as a trade mark to ‘drain its denigrating force as a derogatory term’ and the Supreme Court ruled the ban on its registration unconstitutional.
Examples of previous trade marks denied registration in the US include ‘Don’t Be a Wet Back’ (a slur for illegal immigrants from Mexico), ‘Stop The Islamisation Of America’, ‘Democrats Shouldn’t Breed’ and ‘Have You Heard That Satan Is A Republican’.
But now an applicant in the US is apparently free to register marks that ‘disparage or bring into contempt or disrepute’ until their heart is content. Conversely, in the UK and the rest of the EU our rules are more constraining. For example, the word ‘Paki’ was refused an EU trade mark registration on the grounds of public policy because it would be offensive in the UK – even if the applicant was a German company whose history dates back to 1891. ‘Screw You’ was partially accepted but only for goods sold through sex shops where the consumer would not be offended.
Such cases make entertaining reading. However, in these polarised times the registration of such trade marks will inevitably cause grave offence and distress across the myriad of different cultures, minority groups and races which make up the US population. While some may wish for the same seemingly unfettered freedom of speech to be available on this side of the pond, many of us are grateful for some limits being placed on our freedom of speech on public policy grounds.
Maninder Gill , partner, Simons Muirhead & Burton, London W1
