Where Do Trademarks Draw the Line? Trademark Law

The turbulent political climate has rocketed issues of freedom of speech to the forefront of the social consciousness. The same is true for trademark law. In fact, so-called “vulgar trademarks” are rising in popularity. And it’s easy to see why: they are provocative, political and memorable.

Until recently, trademarks that were considered disparaging or especially vulgar could not be registered. This included things like racial slurs, swear words, certain scatological terms and sex acts. However, this is murky territory to police. For example, out of 40 marks that contained the acronym “MILF,” 50% were accepted and 50% were not. Often times, “vulgar” words and contexts are a matter of subjectivity, which poses a big problem.

The Case for “Disparaging” Trademarks

Trademarks and the first amendment share a complicated history. The Trademark Act in the U.S. bans the registration of “disparaging” trademarks but the Supreme Court recently deemed that such a ban is unconstitutional. The Supreme Court ruling sparked action from Asian-American band The Slants as well as the NFL’s Washington Redskins, both of whom had trademarks rejected under the “disparaging” clause.

Simon Tam, leader of The Slants, notes that the name of the band is meant to reclaim the language of racist stereotypes and his ability to trademark it is a win for marginalized voices everywhere. Can the same be said about the Washington Redskins, who have often come under fire for using a derogatory term for Native Americans as their team name and logo? Maybe not. But the point is that in order for free speech to be truly free, it must be free for all.

BeingSilenced.Sucks, and speech in America needs to be free—even if it seems vulgar or disparaging.

The Rise of Vulgar Trademarks

There are more than 100 trademarks currently pending that include the word “shit” in the brand name. From apparel companies to card games, it seems like brands across every industry are leaning into the shock-value-marketing approach, so much so that the Supreme Court also deemed prohibitions against “immoral” and “scandalous” trademarks as unconstitutional in June 2019; this was following a case brought by the founder of clothing line FUCT, whose trademark application had previously been denied.

But will vulgar trademarks help or hurt your cause? It depends on your brand’s personality and the type of customers you hope to attract. There are pros and cons to a so-called “vulgar” trademark and only you can know what works for your audience.

Cons

You may alienate certain squeamish customers
Your merchandise or logo may be banned in certain spaces (schools, for example)
It may limit your advertising capabilities in certain environments

Pros

You are memorable and will stand out from your competition
You can make a statement and be noticed
Consumers always appreciate a rebel
It’s on-trend and forward thinking in the current market
You attract people who think outside the box, both consumers and potential future hires

The Takeaway

.SUCKS is all about freedom of speech, and if that comes across as “vulgar,” then so be it. As a somewhat provocative mark, a .SUCKS domain is the perfect vehicle to address important issues that may seem taboo to some. Furthermore, grabbing the right .SUCKS domain is just another way to amplify your marketing tactics from all angles. If freedom equates to a bit of vulgarity, then sign us up.

Censorship.Sucks—use your custom domain to join the conversation and be heard loud and clear.

Photo Credits: Shutterstock / Jose Diez Bey, Shutterstock / miker, Shutterstock / Pitipat Usanakornkul

Updated: September 2019

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