Yesterday, the Supreme Court of the U.S. decided Matal v. Tam.  Simon Tam, lead singer of “The Slants”, applied for trademark protection of the band’s name—his reason: to reclaim the racial slur. The U.S. Patent and Trademark Office denied it, under a statute that prohibits registration of a trademark that “may disparage […] persons, living or dead […], or bring them into contempt, or disrepute”. This case presented meaty issues: is a slur, devoid of context, contemptuous by itself? What if a member of a race appropriates a slur to subvert the prejudice? Can whites use the N-word when quoting Dave Chappelle?

At the outset, the court stated: “‘Slants’ is a derogatory term for persons of Asian descent” (page 1). However, the court punted on the interesting stuff: discrimination and intent. Instead, the opinion limited its analysis to dry statutory construction (“every person is a member of a ‘non-juristic’ group”, footnote 4), and putting trademarks in a specific category of speech. The wonky stuff: trademarks are “private” speech, not “government” speech; otherwise, “the Federal Government is babbling prodigiously and incoherently […] And it is providing Delphic advice to the consuming public”, at pages 14-15). Tam won.

SCOTUS determined that the “disparagement clause” violated the First Amendment. In a nutshell, the statute turns trademark bureaucrats into arbitrary censors. The opinion is high-minded, and sneering:

[T]he disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted. (Page 26; emphasis supplied.)

The case did not rule over Snyder’s trademarks, but it’s safe to say that Dan came out a winner. His trademarks, which stood to be cancelled, will become protected.

Snyder’s team was founded on 1933. On June 2014, for the first time, an administrative appeals board ruled that six skin-based trademarks were to be cancelled, as they “may disparage” Native Americans. The DC team, which has the tastefully generic corporate name “Pro-Football, Inc.”, went to the federal district court for Eastern Virginia—which affirmed the scheduled cancellations on July 7, 2015 (Memorandum Opinion and Order). The main finding was that the “disparagement clause” compelled the cancellation of Pro-Football, Inc.’s trademarks. Team Snyder appealed to the Fourth Circuit; after the filing of all briefs, the court stayed resolution until a ruling in the Tam case. Now that the Supreme Court overruled the disparagement clause, that’s basically it. Hail to the Ramekins®.

In lieu of garment rending, some perspective. All the ruling does is grant definitive protection to the DC team’s trademarks. This essentially entails more licensing opportunities, and higher ease to register additional trademarks and to prevail in lawsuits for unauthorized use–or use of a mark that causes confusion. (BTW, any effort to trick consumers into thinking “These skin color wares DO have the Dan Snyder seal of quality” is an issue of mental health.) But I get it: government approval legitimizes the trademarks, literally. Figuratively, as in “society is and will be OK with these words and concepts”, is another matter. Take a look at the following registered marks, culled from court filings in the cases above:

DANGEROUS NEGRO (shirts)

DAGO SWAGG (apparel)

DUMB BLONDE (beer)

RETARDIPEDIA (entertainment services)

BABY DADDY INSURANCE (really? “Bastardy bonds” have more zing)

THAT’S SO GAY (on-line journals)

BIG TITTY BLEND (coffee)

JIZZ (underwear)

DICK BALLS (apparel)

BITCHY GAY (apparel)

SMACK MY ASS AND CALL ME SALLY (condiments)

FAGDOG (greeting cards)

CRACKA AZZ SKATEBOARDS (guess!)

COOCH COACH (online mag)

GRINGO STYLE SALSA (guess!, Part II)

SALTY BALLS (apparel)

GANJA UNIVERSITY (apparel)

SHAMELESS HUSSY (wine)

I WORK HARD BITCH (apparel)

I HATE MY TEENAGE DAUGHTER (TV show)

GUN CONTROL MY ASS (paper goods)

TRANNY SURPRISE (adult entertainment)

YID DISH (education)

WHITE GIRL WITH A BOOTY (apparel)

HEEB (magazine—I once read an article from it #CoolStoryBrah)

PRINCESS SLUT (writing instruments)

HISLUT (dating services)

YARDAPES (landscapers)

HALF-BREED (hats)

CHOLOS ON ACID (band)

WHY MEN LOVE BITCHES (educational materials)

PIMP $LAP! (apparel)

HONKEY KONG (apparel)

STOP BLAMING WHITE PEOPLE. IT’S THE SYSTEM STUPID (mentoring services)

RETARDAISSANCE (entertainment services)

DIRTY WHOOORE [sic] CLOTHING COMPANY (apparel)

CAPITALISM SUCKS DONKEY BALLS (paper goods)

TRUST NO BITCH (apparel)

HANDICRAP (education and charitable services)

BITCH FACE (cosmetics)

CELEBRETARDS (entertainment services)

BOOBS AS BEER HOLDERS (adult entertainment)

THE ROAST BEEF CURTAINS (band)

AFRO-SAXON (apparel)

BOYS ARE STUPID, THROW ROCKS AT THEM (cultural activities)

MAKE YOUR OWN DILDO (law school sex toys)

CRIPPLED OLD BIKER BASTARDS (apparel)

CONTEMPORARY NEGRO (apparel)

REDNECK ARMY (paper products)

DYKE NIGHT (events)

HALF BREED (band)

BAKED BY A NEGRO (baked goods)

Arguably, several of the above are waaaay more offensive than the name of Snyder’s team. However, “there’s worse stuff out there” is relativist bullshit that, above all, establishes more ample and prevalent scumbag-ness, not the merits (or lack thereof) of a particular instance. Context is also important.

Slurs define and constrain a whole race to a single stereotypical “trait”, but its usage by the subjects of the slur can also be a manifestation of pride—of belonging to a community that is different from the majority. In that dynamic, minorities co-opt the slur to strip its dehumanizing charge, not out of inferiority or simplistic reduction. Of course, this is the stuff of “Why can’t WE use ‘[slur]’ and THEY can, DAS RAYCESSS!” fodder. Gimme a break. Insistence on using slurs that have no other meaning, and only apply to others, is pretty god damned petty—at best. It’s not like English is lacking in words.

But yeah, Redacteds: it’s a valid trademark. However, one is not compelled to use the moniker, much less buy merch. The law allows it, and it is up to consumers to spend on the product, brand, and connotations. But make no mistake: Snyder’s trademarks are a skin color, not a measure of anything else. If you find the name offensive, don’t use it. Let the market do the rest.

Banner image from ftw.usatoday.com; original pics by Geoff Burke and Matthew Emmons, USA TODAY Sports. Trademark checks through trademarkia.com.