Perm fails – judiciary rulings demonstrate the state empirically views trademark laws through masculine lens that would render the alt meaningless – only feminist movements independent of the state solve.

The Lanham Act Does Not Provide Tools for Addressing Sexist Trademarks

Trademark law does not offer any legal tools for addressing misogynistic trademarks. This was made clear through extended trademark litigation concerning the registrability of racist trademarks. In the Harjo v. Pro Football series of cases, the validity of several “redskins” trademarks was challenged because “redskins” is unambiguously a racial slur.76 In 1992, a group of Native Americans filed a petition to cancel Redskins marks associated with the Washington Redskins NFL team.77 The Harjo plaintiffs argued that the marks were disparaging to a substantial composite of Native Americans in violation of Section 2(a) of the Lanham Act, which prohibits registration of a mark that “may disparage” persons or “bring them into contempt or disrepute.”78

Pro Football denied that the redskins marks were disparaging and asserted various affirmative defenses, including laches.79 In 1999, the Trademark Trial and Appeal Board (hereinafter TTAB), an independent administrative tribunal housed within the U.S. Patent & Trademark Office, held that the redskins marks were disparaging when they were registered, and ordered the registrations canceled.80 Pro Football appealed to the District Court for the District of Columbia and ultimately the laches defense prevailed, so the D.C. Circuit never evaluated the TTAB’s ruling that the Redskins marks were disparaging on the merits, but the dispute generated a lot of publicity.81

In the 2014 case Blackhorse v. Pro Football, the TTAB again decided to cancel trademark registrations for “Redskins” marks used by the National Football League and the Washington Redskins.82 After the cancellations of their registrations, the Washington Redskins could have continued to use their redskins marks as common law trademarks without interference from the Lanham Act. Registration is a tremendous benefit to trademark owners, however, and Pro Football fought hard to retain it. While the Blackhorse litigation was pending, the U.S. Supreme Court found that Section 2(a)’s limitations on disparaging marks was unconstitutional because the statutory provision violated the First Amendment.83 Without even going to court, Pro Football prevailed.84

The Supreme Court ruling on the unconstitutionality of Section 2(a) came in the 2017 case Matal v. Tam.85 In Tam, a band comprised of Asian musicians that called itself “The Slants” won the right to register “The Slants” as a trademark on the primary registry, even though one of its meanings was clearly racially disparaging. A 2019 follow up case, Iancu v. Brunetti,86 addressed whether Section 2(a)’s parallel prohibition on “immoral” or “scandalous” registrations could survive constitutional scrutiny after Tam. Rather unsurprisingly the Supreme Court decided that these limitations also violated the First Amendment, and Brunetti won the right to register “FUCT” as a trademark for a brand of clothing. It was also notable, however, that during oral argument, none of the Supreme Court Justices was willing to say the word “FUCT” out loud.87

What the Harjo and Blackhorse lines of litigation did achieve, in conjunction with other types of relentless advocacy over decades, was to draw negative attention to the use of deeply racist trademarks. In 2005 the NCAA began to bring pressure on colleges and universities with racist mascots88, and eventually many were changed.89 In July of 2020 the NFL team in the national’s capital announced that it would no longer be known as the Redskins. Instead, at least for now, it is the Washington Football Team.90 In the wake of George Floyd’s murder by a police officer in Minnesota, having a racist trademark finally started to seem like a business liability to the team’s owners. Other corporations have also started paying attention to the racist natures of their trademarks, and many have made changes.91

Free speech absolutists were cheered by the outcomes of Tam and Brunetti at the Supreme Court.92 But one consequence of these holdings is that unambiguous hate speech can now become a federally registered trademark, endorsed and protected as such by the government of the United States, under the Lanham Act and via the Commerce Clause of the U.S. Constitution. Textual marks using the N word are now clearly registrable, and so are words like bitch, slut, cunt and whore.93

CONCLUSION

Common trademark and branding practices related to tampons and sanitary napkins treat having one’s period as a problem that requires science, discretion, and a wide variety of products to address. They help to reinforce a culture of shame around menstruation. Based on recent litigation, it is now certain that the Lanham Act does not offer legal mechanisms by which to challenge the federal registration of sexist and gender-offensive trademarks.

As with racist trademarks, amplified criticism and persistent public pressure are the main mechanisms available to foment positive change in the marketplace for feminine hygiene products. Though contemporary trademark law does not provide any statutory tools with which to undermine the enforceability of sexist menstrual product trademarks, the inspiring examples provided by the triumph of energetic and sustained advocacy against racist trademarks offer a potential path forward. Feminists have a long history of challenging sexist advertising. But to successfully bring effective pressure to bear on companies that leverage misogyny in their trademarks and branding practices will require a lot of patience, and a lot of work. Consider this Essay a call to action.