How the Trademark Office is Screwing Over Artists
If you’ve been following my Twitter feed, you know that I’ve been busy fighting the United STates Patent and Trademark Office because they denied the trademark application for my band’s name on the basis of my ethnicity. You can read about it at NPR, Daily Caller, and so on or hear it on a number of radio shows, including the BBC World Service. And if you really want to help, please consider signing the petition.
Getting a band name trademarked is a good idea. In fact, the USPTO gets so many requests for this, they have a special page for it here. It’s important to not only protect the brand and creative identity of artists, but also to protect fans against a confusing marketplace. Imagine if multiple bands of the same name were on tour at the same time or had albums on iTunes (in fact, it has happened before and it results in costly lawsuits between artists). It’s generally agreed that this would cause quite a mess.
However, the trademark process is expensive and confusing. Most artists need to hire a lawyer for this (it runs about $500-$700 for everything to submit). On the chance that there is something wrong with your application or the attorney processing your application makes a mistake, you’ll need to file an appeal (which costs more money). You get the idea: it costs a lot of money to not apply, but also to correct mistakes. Even if they were wrong and you win the appeal, you don’t get your court fees or attorney fees back. This is why there are thousands of abandoned trademark applications – people don’t want to deal with the bureaucracy of it all (or they can’t afford it).
The problem is that there is a subjective clause in trademark law, Section 2(a) of the Lanham Act. That’s the one I am fighting against now. Section 2(a) says that you can’t trademark anything that is “scandalous,” “immoral” or “disparaging.” How do they determine what is moral? It’s up to the examining attorney. According to many legal experts, this is a violation of free speech. Furthermore, with my case, it isn’t even dealing with something that is offensive, but what could be offensive (see Slanted Against Him). So even if you, your fans, or the rest of the world doesn’t find your trademark to be “scandalous,” if the examining attorney does, you’re in for a long, difficult fight.
Additionally, the Trademark Office is all over the place on this. They approved “Queer Eye for the Straight Guy” but denied “Clearly Queer;” they protect the Washington Redskins but deny “Redskins wear” (on the grounds of being offensive to Native Americans; they’ve received almost 800 applications on variations of “slant” but they denied my case on the grounds it is disparaging to Asians (we’re Asian). It’s insane.
How many artists create something that is provocative, perhaps controversial, so that it engages meaningful discourse about life experiences and art? How many use the art as a form of self-expression or political speech? Now, even if you are found to be possibly distasteful, you can end up in a legal battle that is tough to win.