It is possible to trademark offensive words or phrases but it comes with significant legal challenges and potential roadblocks. While the United States Patent and Trademark Office (USPTO) does not automatically refuse all trademarks with offensive content, certain restrictions and recent legal developments shape whether such trademarks can be registered.
Here’s what you need to know about registering a trademark that includes offensive language, what the law says, and what challenges you might face.
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What Does the Law Say About Offensive Trademarks?
Historically, the USPTO could refuse to register trademarks considered immoral, scandalous, or disparaging under Section 2(a) of the Lanham Act. However, two landmark Supreme Court cases changed this:
1. Matal v. Tam (2017)
• This case involved a band called “The Slants,” whose trademark application was initially denied because the name was deemed disparaging to Asian Americans.
• The Supreme Court ruled that the disparagement clause of the Lanham Act violated the First Amendment’s free speech protections. As a result, the USPTO could no longer deny trademarks solely for being disparaging.
2. Iancu v. Brunetti (2019)
• This case involved a clothing brand called “FUCT.” The USPTO refused registration, finding the trademark offensive, immoral, or scandalous.
• The Supreme Court ruled that the prohibition on immoral or scandalous marks also violated the First Amendment.
• As a result, the USPTO can no longer refuse trademarks on these grounds.
Current Standard:
The USPTO now evaluates offensive trademarks under the same criteria as any other trademark. Offensive language alone is no longer a valid reason for refusal.
What Challenges Do Offensive Trademarks Face?
Even though offensive language is not an automatic disqualifier, trademarks with offensive content can still face hurdles:
1. Likelihood of Confusion
Like all trademarks, marks with offensive language must avoid confusing consumers with existing trademarks. The USPTO will evaluate whether your mark is too similar to another registered mark in the same or related categories.
2. Distinctiveness
The mark must function as a source identifier for goods or services. Generic or descriptive marks, even if offensive, may still be rejected for lack of distinctiveness.
3. Commercial Viability
Even if the USPTO approves a trademark with offensive content, the public or marketplace may not react positively. Retailers, advertisers, and payment processors may refuse to support brands with controversial names.
4. Foreign Trademark Applications
If you plan to expand your trademark internationally, keep in mind that many countries still prohibit trademarks with offensive, immoral, or scandalous content.
Conclusion
While you can now trademark offensive words or phrases thanks to First Amendment protections, these marks still face potential challenges in the application process, commercial use, and international expansion. If you’re considering using offensive language in your brand, it’s important to weigh the potential benefits of shock value and brand differentiation against the risks of backlash, restrictions, and limited market access.
Consulting with an experienced trademark attorney can help you determine whether your trademark aligns with your business goals and ensure your application is as strong as possible. Whether your mark is offensive or not, protecting your brand is essential for long-term success.