In 2017, the Supreme Court in Matal v Tam held that the disparagement clause (s.2(a) of the Lanham (Trademark) Act 15 USC §1052(a)) was facially unconstitutional under the First Amendment. In striking down this clause, the Court removed the primary barrier to the registration of racist slurs as trademarks. The decision allowed the applicant, Simon Tam, to register the trademark THE SLANTS; however, the registration also empowered other persons to also register racist trademarks, as evidenced by the flurry of applications for such marks in the period following the decision. Controversially, the decision also neutered the protracted efforts by some Native Americans to de-register NFL-owned racist trademarks such as REDSKINS on disparagement grounds. In this paper, which blends both critical and empirical research, we offer a theory of counterpublic trademarks, focusing on trademarks, like the Slants, that develop in parallel to their official public spheres and (as Nancy Fraser has described) “where members of subordinated social groups invent and circulate counter discourses to formulate oppositional interpretations of their identities, interests, and needs.”
We first set out to answer a question: do counterpublic trademarks exist? We find that the answer is yes, but in very small numbers. Using empirical data, we argue that self-appropriation in counterpublic trademarks is critically distinct from the appropriation of a slur by a non-affected group, both in terms of the intent behind registration as well as the potential “public” that are affected by such trademarks. To prove this hypothesis, we set out a methodology to measure the quantum of “racist” trademark applications over a 30-year period from 1988 to 2018. Our preliminary results show that out of close to 8 million trademark applications, the number of racist applications has remained consistently low (less than 1%) both before and after the Tam decision. However, what is significant is the racial identity of the applicants. Drawing on US Census data to identify race, the paper finds meaningful distinctions between which races actively self-appropriate slurs versus which races (typically Native American) suffer from racial “appropriation” of slurs by another group. This paper also finds interesting results as to which races (typically White and more recently Asian) are actively appropriating slurs against minority groups.