When the Supreme Court ruled 8-0 earlier this month that the U.S Patent Trademark Office could not prevent an Asian American rock group from registering The Slants because it viewed the trademark as offensive, Dykes on Bikes celebrated. It too could finally lead the Dyke March with a registered trademark.
“This really happened! It’s finally over! We’ve finally, finally, reached the end of this and it went in our favor,” said Kate Brown, president of San Francisco Dykes on Bikes.
Earlier, both The Slants and Dykes on Bikes had their trademarking attempts denied on the grounds that the language used was disparaging to the people they referred to. Each group argued that the ruling was unconstitutional and in fact they were repurposing terms considered offensive with the intent of empowering their communities.
Brown said it makes their case very different from that of the Washington “Redskins” because Asian Americans and lesbians are members of The Slants and Dykes on Bikes so they are speaking from the point of view of insiders.
In the “Redskins” case, Native Americans mobilized to remove a trademark they find offensive and racist.
“The Washington Redskins is not a member of a group reclaiming generally understood insulting language to identify itself. Rather, the ‘Redskins’ uses what is widely acknowledged to be a racist epithet against Native Americans when it is not a part of that group, and in doing so deepens the pain of the epithet,” said Brown.
Attorney Brooke Oliver, who is based in Balmy Alley in the Mission District and represented Dykes on Bikes pro-bono, said the initial court ruling violated the First Amendment’s Freedom of Speech clause. Lesbians, she said, should have protection for political speech and should have the right to refer to themselves as they see fit.
“It is important for young lesbians coming out to have a role model and we wanted to protect it,” added Oliver. Trademarking Dykes on Bikes protects the non-profit organization by preventing others from exploiting their good work commercially.
“A trademark doesn’t just protect merchandize,” said Oliver. It can also prevent other people from claiming to speak for the Dykes on Bikes organization.
Brown added, “The trademark allows you to know that what we say comes from our organization.”
Their success in court, said Oliver, shows that “The USPTO should not be deciding what is derogatory and what is not, and them doing so is the essence of viewpoint expression.”
The court agreed. “To permit viewpoint discrimination in this context is to permit Government censorship,” added Justice Kennedy. In other words, it is not up to the government to determine what is derogatory or not, it is up to the people themselves.
“The holding in this case is not an endorsement of offensive terms. Rather, it reaffirms that people and not government bear the responsibility to make good decisions about what is and is not offensive,” said Tobias Barrington Wolff, an attorney who helped Dykes on Bikes win their legal battle.
Brooke added, “People can make a difference in how language is used. Any time people have freedom of speech we have the responsibility to use it in a responsible way.”