'Queer Trademarks' by Michael Goodyear in (2024) University of Illinois Law Review (Forthcoming) comments
LGBTQ+ slurs can now be registered as trademarks. The U.S. Supreme Court’s decisions in Matal v. Tam and Iancu v. Brunetti allowed federal registration of disparaging, immoral, or scandalous trademarks. Appellee Simon Tam cheered, hoping that these decisions would usher in a new era of minority communities reappropriating harmful and offensive terms steeped in hate and prejudice. Others were less optimistic. Advocacy organizations, scholars, and others worried that these decisions opened the floodgates to the United States Patent and Trademark Office registering the vilest and most prejudicial terms in the U.S. lexicon to ossify hatred. Only time would tell who was right.
Now, several years after Tam, this Article seeks to answer this question for LGBTQ+ slurs. A prior study found that affirming uses of racially-oriented marks by in-group members predominated over disparaging ones after Tam. This Article builds on that analysis and breaks ground on examining trademark law’s relationship with LGBTQ+ persons. To date, practically no scholarship has examined the relationship between trademark law and the LGBTQ+ community. This Article presents a new empirical analysis of 144 LGBTQ+-oriented trademark applications filed before and after Tam. This study finds that the number of LGBTQ+-oriented trademark applications has increased over twofold since Tam. More surprisingly, LGBTQ+-oriented marks have been overwhelmingly affirming in nature; not a single disparaging use of the slurs in trademarks was identified over the entire nine-year period. Based on these findings, I posit that Tam and Brunetti have facilitated increasing applications for and registrations of LGBTQ+-oriented trademarks by and for the LGBTQ+ community rather than as symbols of hate against it.
