What if I told you the United States Patent and Trademark Office has never registered a trademark containing the word “fuck?”
Step back for a second and just look at the word “fuck.” Say it. Does it create a “shock or jolt of dismay” when you hear it or read it? Why?
What emotions does “The Slants” evoke in your mind when you read it or see it? Do you take offense to that? What if I told you that was the name an Asian-American party band chose and summarily had their trademark ejected on the grounds “others might find it offensive?”
These questions are all prime for Mediation is Dead, and that’s why I’m declaring Marc Randazza’s latest law review article, “Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights” Mandatory MiD Reading Material.
Randazza’s take on the need to jettison the “moral utility” doctrine with regards to trademarks and copyrights is a discussion worthy of merit, because intellectual property is a form of communication, and Mediation is Dead is about a discussion of effective communication. I wouldn’t normally review a law review article, nor would I say that the layperson should read one, but when you have a discussion about topics like “Screw You” “Nut Sack Double Brown Ale,” and whether pornography should get copyright protection, the public will find Randazza’s take both entertaining and educational.
Here are the big takeaways I got from Randazza’s view on injecting morality into trademarks and copyrights.
1. Morality is a circular definition, it changes with the times, and has no place when determining “soft intellectual property’s” worthiness of protection.
What is morality? That’s the framework with which we need to begin. It is “principles concerning the distinction of right or wrong or good and bad behavior.” This is fluid and changes constantly, no matter how uncomfortable some people may find it.
It’s a little easier to justify denying a patent for a device on “moral utility” grounds if it’s affecting the human condition. For example, if a device or procedure cuts away at human dignity then we may reject government protection of its creator because its “moral bankruptcy” doesn’t show usefulness or benefit to society.
With “Soft IP,” such as trademarks and copyrights, it’s a little harder to justify giving a government agency control over whether the creator gets the protection of intellectual property based on notions of what is “moral.”
Let’s take a few examples from the United States. We have a provision in our intellectual property code that denies trademarks (where protection attaches on registration) or copyrights (where protection attaches on creation) based on whether they are “shocking to the sense of truth, decency or propriety, disgraceful, offensive, disreputable, giving offense to conscience…” You get the point.
We have tended to throw out any notions of whether the “marketplace” or a “substantial component of the general public” would find the trademark or copyrighted work offensive. “CUMFIESTA” got the trademark because the people consuming their content were searching for pornography, and that’s not a situation where the government should deny protection. The same with “Madonna” wine or “Nut Sack Double Brown Ale.” Alcohol consumers won’t particularly take offense to it, so there’s no need to deny protection to the creators of said trademarks.
And then there’s In re Tam., the Federal Circuit Court of Appeals decision that may burn Section 2(a) of the Lanham Act to the ground.
Simon Tam wanted to call his band “The Slants.” They’re an Asian-American party band. They chose that name. The government rejected Tam’s application for a trademark, because “Slants” is an ethnic slur against Asian-Americans, and they might find that offensive.
Tam appealed his case all the way to the United States Federal Circuit Court of Appeals, and won. The Court found that excluding “disparaging marks” from trademark registration violates the First Amendment.
2. There is a real danger the United States Supreme Court will have to decide “morality” and how it affects freedom of expression.
Tam isn’t binding precedent on several levels. It’s a good standard to follow, but it’s not close enough. Right now, there’s a case in the Fourth Circuit that’s fully briefed involving the NFL’s Washington “Redskins” trademark. If the Fourth Circuit, a historically conservative court, rules against the ‘Skins, then it’s going to cause a split in the law, and the United States Supreme Court will most likely have to decide what the law is.
Allowing the most dangerous branch of the Government to determine what morality is, and whether it should apply uniformly across this country, is absolutely frightening.
3. Morality based impediments on intellectual property violate human rights.
Did you know Budweiser’s trademark isn’t protected in Portugal? Now you know. Budweiser’s current owners took the case to the European Court of Human Rights over this matter, saying that denial of their trademark in Portugal interfered with the basic right of a human to freely enjoy his or her possessions.
4. The Morality Police have no place in stifling creativity.
This is a trend we’re seeing in intellectual property laws as they’re decided across the world. It still has the potential to shift at any given moment, and that’s a troublesome approach to take. If we invite bureaucracy to determine what is right or wrong and good or bad for us, then we are good and truly screwed when it comes to free expression.
Imagine the most terrifying figure you can inhabiting the White House. Now imagine that person having the ability to tell you at any given moment, with the blessing of the legislature, what is “right” or “wrong” for you.
Now ask yourself if that’s the world you want. If the answer is “no,” your legislature is arguably a phone call away.
5. Stop placing value judgments on the message, and consider the message on the merits.
“If we accept the theory that morality based restrictions are supportable then it threatens…free speech.”–Marc Randazza
That statement makes the entire article worth reading on the merits for those who frequent Mediation is Dead.
“Soft IP” is a form of communication. It’s transmission of a message to an intended recipient. Don’t place a value judgment on the message transmitted before you start a fight. It may be more appropriate to ask “What do you mean by that?” instead of jumping to “I find this offensive and must be silenced.”
You don’t need to place a value judgment on a person’s message to have an effective discussion with them on it. In fact, your discussion will be better if you speak from a place where you put zero value judgements on your counterpart’s message.
That’s the Mediation is Dead approach.
If you want to download the entire law review article, it’s worth a read.
It’s mandatory MiD.