For 71 years, the US Patent and Trademark Office refused to register “immoral,” “scandalous,” or “disparaging” trademarks. “Bubby trap” for brassieres? Too scandalous to be registered. “Redskins” for a football team? So disparaging to Native Americans that it was canceled not once, but twice.
Then in 2010, an examining attorney at the USPTO told Simon Tam, the Chinese-American frontman of the dance rock band The Slants, that his band name was disparaging to Asian-Americans. Affronted, Tam sued, and took it all the way to the Supreme Court. On June 19th, 2017, the Supreme Court ruled that the provision of trademark law barring the federal registration of “disparaging” trademarks violated the First Amendment, and likely took out the restrictions on “scandalous” and “immoral” trademarks along with it.
To be clear, this particular provision — section 2(a) of the Lanham Act — wasn’t a very sensible or consistently enforced restriction on trademark registration. It was incredibly awkward for a bureaucrat to tell Simon Tam that he was disparaging Asian-Americans, but the refusals on the basis of scandalousness were maybe even more nonsensical. For every application for “Cocksucker” (lollipops shaped like roosters) that the office had rejected, there was a “Cumbrella” (condoms) application that got approved.
The system wasn’t predictable. It wasn’t fair. It wasn’t consistent. But at least there was a rule that a government bureaucrat could rely on in order to avoid the indignity of having to register a trademark for something like “The Piss Tape is Real” in a federal database, for instance.
Now there isn’t. And a real application for the trademark “The Piss Tape is Real” is trickling through the system.
In 1971, the Supreme Court overturned the conviction of a man for wearing a jacket that said “FUCK THE DRAFT” in a courthouse corridor. The ruling was supposed to be a sign of the times, a legitimization of counterculture and an acknowledgment of the shifting social norms around profanity and uncouth speech.
“The Piss Tape is Real” is an utterly undignified utterance, and any of its truth or falsity is beside the point. If approved, the slogan will be splashed on hats, shirts, hoodies, and anything else one can print on and sell. “The Piss Tape is Real” is a sign of our times. This is the story of how we got here.
Now, federal registration isn’t required to own or legally enforce a trademark. A centralized registry where commercial entities can look up which marks have already been claimed theoretically prevents unnecessary lawsuits and confusion. In order to incentivize people to use this registration system, the law makes it easier to defend (or enforce) your trademark in court if you already have it registered.
In short, federal registration isn’t necessary. But it’s really good to have. It’s like TSA PreCheck, but for intellectual property law.
And as with PreCheck, there’s a process involved: there’s a filing system, a $225 fee (at minimum), and a few really weird rules.
One of those is section 2(a) of the Lanham Act — the statute that governs federal trademark law — which bars the registration of a trademark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
When a trademark application drops in front of the United States Patent and Trademark Office, it’s assigned to an examining attorney. The USPTO has been accused of being little more than a rubber stamp, but examiners do do some outside research in the course of their duties. (Some examiners are, naturally, a little more zealous than others.) Sometimes this means opening up a search engine and typing in the word mark just to gather evidence that it’s a slur. It’s no wonder that before Tam, the United States Patent and Trademark Office applied section 2(a) of the Lanham Act with wild inconsistency.
In the case of Simon Tam, “The Slants” was refused repeatedly, with the examining attorney citing sources like Urban Dictionary and a blog post about Miley Cyrus pulling her eyes back to make fun of Asians. Other groups reappropriating slurs have run into the same hurdle: the historic lesbian institution “Dykes on Bikes” — a longtime fixture at gay pride parades — has run into trouble with the office more than once. The Dykes even filed an amicus brief at the Supreme Court in support of The Slants. In 1999 (and again in 2014), the USPTO canceled the “Redskins” registration, citing the disparagement of Native Americans, setting off years of litigation around the trademark.
But for every rejection of “Slants” and “Redskins,” other slurs sail right through, including “Dangeros Negro,” “Stinky Gringo,” and “Celebretards” (registered in 2010, 2006, and 2009, respectively). Disparagement, it turns out, is in the eye of the beholder.
Tam exists in a thorny political context about racism and speech in 2017. But the case itself isn’t about appropriation and reappropriation. It’s not about race relations and white supremacism in 2017. The opinion only mentions racism once, when Alito writes, “the 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.”
That rationale suggests that although only the “disparaging” clause was at issue in Tam, the Supreme Court decision likely took down the prohibition on “immoral” and “scandalous” registrations as well. And now, at last, people can start making some money on “The Piss Tape is Real” T-shirts.
That’s the theory, of course. In practice, it’s a little trickier than that. The USPTO has yet to update the Trademark Manual of Examining Procedure (TMEP) — the rules and guidelines that examining attorneys rely on to make their decision — in light of the Tam decision. So technically, examiners are still being told to refuse marks for scandalousness.
The issue is likely to be finally, finally resolved in yet another case, a dispute over an application for the trademark “Fuct” for apparel. In the wake of the Tam decision, the USPTO acknowledged that it’s likely that any refusal over scandalousness is probably unconstitutional, too. And that means “Fuct” will likely be given the green light.
What counts as “scandalous” has varied wildly over time. A 1981 case found that a logo of two naked people embracing couldn’t be registered in connection with a newsletter devoted to “Social and Interpersonal Relationship Topics” and “Social Club Services,” which is a pretty nice way to describe a publication that, if not porn, was at least porn-adjacent.
Amanda Levendowski, a teaching fellow at NYU Law’s Technology Law & Policy Clinic, has done extensive academic research into scandalous marks, and says that many of the early marks denied under the provision “might be viewed as quaint under modern standards, like BUBBY TRAP for brassiers, QUEEN MARY for undergarments, and MADONNA for wine.”
In 1994, the Federal Circuit gave the go-ahead to “Black Tail” for a softcore porn magazine featuring “photographs of both naked and scantily-clad African-American women.” In making the decision, the court wrote, “We must be mindful of ever-changing social attitudes and sensitivities. Today's scandal can be tomorrow's vogue.”
And today’s vogue is increasingly crude. By 1993, the USPTO registered a trademark featuring an American flag on a condom, and in 2011, registered “Cumbrella” for condoms. (“Cocksucker,” for lollipops shaped like roosters, was, however, rejected.)
All of which brings us to an application filed June 30th, 2017, for “The Piss Tape is Real,” seeking to register the mark for hats, hoodies, shirts, even “footwear,” “dresses,” and “non-jewelry wristbands.” The application was filed for $275, plus whatever fees the applicant paid to the third-party online service he used to streamline the process.
Is “the piss tape” — a reference to an alleged recording of the sitting president of the United States employing two Russian prostitutes to urinate on a hotel bed — a bridge too far for the USPTO?
Scandalousness isn’t the only ground mentioned in section 2(a). The law also bars the registration of marks that might bring a person, living or dead, “into contempt, or disrepute.” But not only is that part of the statute probably invalid in the wake of Tam, but citing it would also require an examining attorney to admit that “the piss tape” of “The Piss Tape is Real” is, well, that piss tape.
I reached out to the applicant for “The Piss Tape is Real,” and he wasn’t in the least bit cagey about which piss tape he was referring to. The trademark application is filed in the name of a Delaware public benefit corporation he’s formed with two friends, with the aim of making Donald Trump’s presidency “as short and as politically painful as possible.”
The applicant was aware of Matal v. Tam, and confirmed that the Supreme Court ruling had prompted him to file an application for “The Piss Tape is Real.” Now that restrictions on offensive trademark registrations had been removed, why not aim offensive speech at the president?
But does he think the piss tape is real? That’s beside the point, he says. The trademark is a vituperative attack on a president who himself engages in vituperative attacks and hate speech, and has — he says — brought the general level of our political discourse to a new low.
Besides, he added, there’s always the chance that someone might see the T-shirt who doesn’t know about the Christopher Steele dossier and will go out of their way to look it up and thereby become enlightened, so to speak. He thinks that, regardless of whether the piss tape actually ever materializes, people should know that it might be out there.
In the face of that, wearing “The Piss Tape is Real” on T-shirts, hoodies, and hats is a form of direct action and political protest.
As I was researching for this story, I found a megathread titled “The Piss Tape is Real” deep inside the recesses of the political subsections of Something Awful forums. At some point last week, a user posted, “So guys I filed a trademark application for the phrase ‘the piss tape is real’ and I got a call from some reporter from the verge yesterday. how should I respond.”
“The piss tape is real,” a few users respond, predictably. “Pee on him,” advises another, more creatively.
There’s nothing new about internet shitposting, but there’s something emblematic about finally getting to federally register “The Piss Tape is Real” just as the decency of mainstream political discourse hits absolute bottom — then sinks even further. It’s a path that will inevitably take all of us, mostly figuratively, right into the toilet.