Column: Government Shouldn’t Be Acting as Arbiter of Offensiveness
You might have missed the news that Nominet, the domain name registry for the U.K., is considering a ban on offensive terms. This comes on the heels of the U.K.’s plan to filter out sites the government deems objectionable, such as those featuring pornography, discussion of suicide or (my favorite) instructions on how to circumvent parental Internet controls.
In the U.S., Internet domain names are largely unpoliced, except to avoid infringement of intellectual property. For some site owners, choosing an offensive name seems to have a peculiar appeal. Many others are selected by accident. And in the libertarian ethos of the technology world, both groups are generally left to their choices. The offended can always avoid the troubling sites.
But the possibility that the U.K. might decide to restrict offensive domain names mirrors a hoary and outdated provision of U.S. law — to wit, the power of the Patent and Trademark Office to deny registration to marks because they are deemed “immoral” or “scandalous.” Thus a domain name with several meanings may be denied registration as a trademark when, in the words of a federal appellate court, “one of its meanings is clearly vulgar.” So an entrepreneur can face the fascinating position of having a clearly permissible domain name that constitutes a clearly impermissible federal trademark.
The authority to refuse registration for scandalous marks has been used to reject names from “Madonna” (for wine) to “Pussy” (for nonalcoholic beverages). At the moment, the rule is in the news because it forms the basis for the effort by American Indian activists to cancel the registration of the trademarks for the Washington Redskins football team.
Occasionally the marks in question are so vulgar that no reasonable person would imagine any other purpose but to draw attention through offense. The patent office often refers to these marks as “scandalous per se.”
You might reasonably object to any official recognition of such vulgarity. But the relevant question isn’t whether it’s wrong to choose offensive trademarks. The question is whether the right answer is to set up a federal agency as the arbiter of offensiveness.
When I teach this material in my intellectual property course, the students are torn. On the one hand, they sympathize with, for example, the efforts against the use of the term Redskins. On the other hand, they are rightly uneasy at the idea that the government gets to decide what’s immoral or scandalous.
The ban on registration of immoral and scandalous marks has been part of federal law for more than a century, and was preserved when federal trademark protections were strengthened in 1946, in that tumultuous decade after World War II, when concern about immoral influences pervaded culture. A few years later, popular pressure would force publishers to enforce the Comic Books Code, which for decades banned graphic violence, any hint of sex and stories in which the good guys were seen smoking or drinking. This was the era when the words “under God” were added to the Pledge of Allegiance. Television depicted married couples in twin beds.
In such an era, enacting a federal trademark law without the ban on immoral and scandalous matter — a ban that has been upheld against First Amendment challenges — would have been unthinkable. Since then, our view of the regulation of morality has grown less communitarian and more libertarian, especially online. Thus the outbreak of fury across the Internet at the direction in which the U.K. seems to be moving.
The statute leaves the U.S. patent office with what one commentator has called “almost unbridled agency discretion,” which academic critics have long charged is exercised for political motives. One marker of how the regulators are buffeted by the prevailing winds is the back-and-forth on whether the mark “Dykes on Bikes” was offensive.
The extent to which the predilections of the examiners and the judges play a role may be seen in their refusal of the registration of “Madonna” for wine: “The Virgin Mary stands as the highest example of the purity of womanhood, and the entire Christian world pays homage to her as such.” That decision was handed down in 1938. But tastes change; so do predilections; and so do judgments about scandalousness. Some decades later, the singer Madonna would obtain federal registration of her name in connection with the provision of entertainment services.
The unpredictability and confusion strongly suggest that the Patent and Trademark Office should get out of the business of determining what is and isn’t offensive. There is no hope of settling on a precise standard. Even if there were, one man’s vulgarity would still be another man’s lyric.
Would the abandonment of a federal regulatory role mean a sudden rush to market of vulgar and offensive trademarks? Maybe so — we live after all in a time when vulgarity, for no obvious reason, is considered to be hip. In the online world, offensive spoofs on corporate names are common, and though some companies seem intent on buying up every raunchy variant of their trademarks, the offensive imagination is endlessly inventive. The problems, nevertheless, are better solved without resort to regulation.
Take the case of the Redskins. Even should the complainants succeed in overturning the trademark, the club can go on using the name but with reduced federal protection. Eventually, economic and political forces may press the team in a different direction. When prominent sportswriters decide not to use the name of the team any longer, and even the U.S. president muses that the team should consider a change, one can sense the turning of history’s wheel. On the other hand, Daniel Snyder, the team’s principal owner, has offered a spirited defense.
Which side will prevail? Better to take such problems out of the hands of the federal bureaucracy and leave them to the court of public opinion.
Stephen L. Carter is a columnist for Bloomberg View and a professor of law at Yale University.