Queer Trademarks

LGBTQ+ slurs can now be registered as federal trademarks. The U.S. Supreme Court’s decisions in Matal v. Tam and Iancu v. Brunetti permitted 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 offensive terms steeped in hate and prejudice. Others were less optimistic. Advocacy organizations, scholars, and minority groups 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, ossifying 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, following Tam, affirming uses of racially-oriented marks by in-group members predominated over disparaging ones. This Article builds on that analysis and breaks ground on examining trademark law’s relationship with LGBTQ+ persons. To date, there has been practically no trademark law scholarship on the LGBTQ+ community.

This Article presents an 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 unanimously 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 symbols of hate against it.

* Acting Assistant Professor, New York University School of Law; Fellow, Engelberg Center on Innovation Law & Policy. I would like to thank Jasmine Abdel-khalik, Haim Abraham, Jonathan Ashtor, Barton Beebe, Courtney Cox, Jack Enman-Beech, Andrew Gilden, Paul R. Gugliuzza, Jonny Hardman, James C. Hathaway, Tim Holbrook, Vicki Huang, Sonia Katyal, Aniket Kesari, Grace McLaughlin, Michael Modak-Truran, Jennifer Rothman, Eden Sarid, Jeremy Sheff, Chris Sprigman, Simon Tam, Rebecca Tushnet, Saurabh Vishnubhakat, and the participants at the Thirteenth Annual Tri-State Region IP Workshop, Queering Private Law Workshop, and Ninth Annual Mosaic IP Conference, for their helpful conversations and commentary on prior drafts. I would also like to extend my gratitude to the editors of the University of Illinois Law Review for their assistance in bringing this piece to fruition.

The full text of this Article is available to download as a PDF.