Trademarks enable redefinitions and reclamation of derogatory terms

Early in its history, one of the founders of the Women’s Motorcycle Contingent coined the phrase “Dykes on Bikes.”68 The term became used in the press and in popular LGBTQ+ culture to refer to the group.69 In 2003, the group formally voted to change its name to the San Francisco Dykes on Bikes Women’s Motorcycle Contingent (“SFDOBWMC”).70 The “Dykes on Bikes” name was not only recognizable and catchy,71 but reflected the group’s purpose of promoting lesbian civil rights and resisting harmful stereotypes about the LGBTQ+ community.72 Like many organizations, SFDOBWMC applied to register its new name as a trademark with the PTO. 73 It had been used in commerce for at least two decades by this point and was widely recognized by the media and LGBTQ+ community in the Bay Area, which should have made for fairly standard approval of the trademark DYKES ON BIKES.74 But the use of the term “dyke” sparked controversy—it was an LGBTQ+ slur, even if used in a reaffirming way.75 This trademark launched a decade-long legal battle. The PTO examiner denied SFDOBWMC’s application because the proposed mark was derogatory towards lesbians and therefore unregistrable under Section 2(a).76 In response, SFDOBWMC’s legal counsel wrote a letter explaining how, while originally pejorative, the term “dyke” had become, by 2003, an accepted term of pride and identification for women within the LGBTQ+ community, and should be federally registerable as a trademark.77 In support of its argument, SFDOBWMC attached twelve documents illustrating how the term “dyke” was now used in an affirming sense by the LGBTQ+ community.78 Nonetheless, the PTO made its Section 2(a) refusal final, finding that some women still found the term derogatory.79 Historian Joan Nestle observed, “I cannot imagine a more ironic twist of thinking than to judge this reclaimed badge of honor as insulting to the very community who has created its power.”80 SFDOBWMC’s counsel then produced over three hundred pages of evidence and testimony from twenty-six experts showing that the mark was not disparaging.81 When the PTO relented and the mark was finally published for opposition in 2006, it was opposed by Michael McDermott, a resident of San Francisco, on the basis that the SFDOBWMC was carrying out an “Anti Male Hate Riot.”82 The Trademark Trial and Appeal Board (“TTAB”) rejected McDermott’s claim, holding that he failed to show that any other men would find the mark disparaging towards them and that he lacked standing for a lesbian disparagement-related claim because he was not a lesbian.83 The Federal Circuit upheld the TTAB’s decision.84 Shortly thereafter, the PTO finally registered SFDOBWMC’s DYKES ON BIKES trademark on October 30, 2007.85 The matter seemed to be settled once and for all in 2008—five years after SFDOBWMC had first applied to register its mark with the PTO—when the Supreme Court declined to grant certiorari to McDermott.86 The SFDOBWMC finally had their trademark registration and had achieved a symbolic victory for the LGBTQ+ community. But the legal challenges to the DYKES ON BIKES trademark were not yet over. In 2015, SFDOBWMC submitted another trademark application to the PTO—this time for its logo, a triangle with the letters “W,” “M,” and “C” in each corner and a gear design in the middle containing the words “Dykes on Bikes.”87 Like with SFDOBWMC’s wordmark application, the PTO rejected the new application on the basis that the proposed trademark disparaged lesbians.88 In response, SFDOBWMC filed hundreds of pages of evidence in opposition, including the history of the DYKES ON BIKES wordmark (which, of course, had eventually been registered by the PTO notwithstanding Section 2(a)) and new evidence showing how the term “dyke” was not being used derogatorily.89 For the first time, the SFDOBWMC also argued that the disparagement bar under Section 2(a) was unconstitutional, as the Federal Circuit had recently held in a case known as In re Simon Shiao Tam. 90 Nonetheless, the PTO rejected the SFDOBWMC’s arguments and affirmed the denial.91 Contemporaneously, the Tam case SFDOBWMC had referenced was now pending before the Supreme Court.92 The SFDOBWMC filed an amicus curiae brief in support of Tam, arguing that Section 2(a)’s disparaging bar unconstitutionally restricted political speech and was applied arbitrarily, citing its own trademark registration odyssey in support. 93 In 2017, the Supreme Court agreed with Tam and the SFDOBWMC, holding that Section 2(a)’s bar on the registration of disparaging trademarks was unconstitutional under the First Amendment.94 Following the decision in Tam, the PTO finally registered the DYKES ON BIKES logo, fourteen years after the SFDOBWMC first applied to register its wordmark.95 The DYKES ON BIKES saga demonstrated the extraordinary lengths to which LGBTQ+ individuals had to go to obtain federal trademark registration. The Section 2(a) bars on disparaging and immoral or scandalous marks could serve as bars on registering LGBTQ+ marks in general, as, for many, LGBTQ+ culture is synonymous with sex and therefore per se scandalous.96 Moreover, as mentioned above, LGBTQ+ persons have to create their own symbols and sources of identity,97 so these bars can be especially harmful to the LGBTQ+ community as they prevent registration of building blocks of LGBTQ+ identity.98 The removal of those bars, therefore, could have a significant impact on the LGBTQ+ community