The Surprising Result of the Supreme Court Case That Allowed Slurs in Brands

When people think of trademarks, they typically think of wholesome, ubiquitous, or luxury brands. Coca-Cola for soft drinks. Pepperidge Farm for snacks. McDonald’s for fast food. Gucci for fashion. These are brands that many wish to consume for the perceived benefit associated with them—they’re tasty or beautiful. This is the goal of trademarks: to serve as a source identifier so you can distinguish your favorite type of fish-shaped cracker or clutch bag from others in the marketplace.

Trademarks also serve a symbolic function for the consumer. In many ways, these trademarks have become figments of individuals’ identity. Consumers choose to wear clothing with prominent trademarks, like Supreme or Ralph Lauren. Influencers swear by certain toys and beauty products, such as Squishmallows and Kiehl’s. Even America has become synonymous worldwide with McDonald’s golden arches and Levi’s blue jeans.

But of the thousands of brands flooding the marketplace, consumers might be startled to see what appears to be LGBTQ+ slurs in the mix. Dykes on Bikes? Homo Hair? Queer Pong?

In 2017 and 2019, two Supreme Court decisions opened the gates of the trademark registry to LGBTQ+ slurs. Until that point, no one had been able to federally register a trademark that was “disparaging” or “immoral or scandalous.” These two restrictions largely prevented anyone from registering derogatory slurs as trademarks. But when the Supreme Court invalidated the restrictions on the basis of free speech, the possibility for obtaining slurs as trademarks arose. Many feared the worst. Indeed, several people tried to register the N-word as a trademark the day the first Supreme Court decision was released. Why would it be any better for the LGBTQ+ community?

In a recent study published in the University of Illinois Law Review, I set out to determine what the effect of those two decisions had been on LGBTQ+ slurs. Did people want to register these slurs as trademarks? If so, why?

Despite the undeniable advances in LGBTQ+ rights over the past few decades, I was pessimistic at best. Hate crimes against LGBTQ+ people increased sharply in 2023. Several states have passed transphobic laws or seek to ban drag performances. If hate was on the rise, surely bigots would seek to register trademarks carrying their homophobic and transphobic messages.

I reviewed all applications for trademarks containing 11 prominent LGBTQ+ slurs across a nine-year period, four and a half years before and after the 2017 Supreme Court decision Matal v. Tam. There was indeed a rise in trademark applications after Tam that contained these slurs: 41 to 105. But more remarkable were the proposed uses of these trademarks. All of them that had any substantive description in the application or an appreciable online presence—both before and after the Supreme Court cases—were by or for LGBTQ+ persons. They were meant to reclaim the slurs for the community. Although a few trademarks had practically no online presence and their intent was unclear, not a single trademark was explicitly aimed at sowing hate or disparaging LGBTQ+ people.

Instead, the applied-for trademarks were reaffirming. For example, Butch Appétit is for a dating app for gay, lesbian, and bisexual individuals. Dyke Beer is a brand of beer meant to say to the purchaser, “You exist and you are important.” National Queer Theater Inc. seeks to support LGBTQ+ people and further social justice in the performing arts. The Queer Agenda is a card game. Two Hungry Homos is a cooking show hosted by a same-sex couple.

Before Tam, the U.S. Patent and Trademark Office had refused to register trademarks like these. It was far from consistent when defining what was disparaging, immoral, or scandalous, with individual examining attorneys importing their own personal mores into the examination process. For example, “Milf Seeker” was immoral or scandalous, but the USPTO registered “Milf Hunter.” The USPTO registered “That’s So Gay,” but denied “God Is Gay” as blasphemous. The disparaging and immoral or scandalous restrictions on trademark registrations prohibited positive attempts to reclaim uses of slurs as well as those that sought to further hate.

In this instance, allowing more speech brought out good intentions rather than hate. I think that there are four reasons why this may have happened.

First, the reclamation of slurs often follows an increase in rights for the target group. Increased LGBTQ+ civil rights, including marriage, employment, and housing protections, could have spurred members of the community to seek to reclaim historically derogatory slurs.

Second, there is scant history of using LGBTQ+ persons as trademarks. There is a long, painful history of using racial minorities in problematic trademarks, such as Aunt Jemima, Uncle Ben’s, Land O’Lakes, and Eskimo Pie. Perhaps due to this history, a prior study found more mixed results on trademark registrations of racial slurs following the Supreme Court’s decisions. But unlike race, non-hetero sexual orientation and non-cis genders were simply taboo. They were not discussed and were not part of mainstream society. The use of positive LGBTQ+ trademarks, therefore, did not have to fight against a current of homophobic trademarks already in the market.

Third, to get a trademark, the brand must actually use it as a source identifier. When someone sees the purported trademark on a good or service, they should associate that good or service with the overarching brand. They cannot qualify merely by putting “I Hate Queers” on a shirt, as this is an ornamental use. It fails to function as a source. Indeed, would-be registrants must use the slur as their overarching brand, something like Coca-Cola or McDonald’s. This is a high barrier to entry, as bigots would need to dedicate their commercial enterprise to this homophobic or transphobic slur rather than merely espouse it.

This is related to the fourth and final reason: Slurs as trademarks likely have limited commercial appeal. How many people would wear apparel emblazoned with “No Homo”? Or eat at a restaurant named “Queer Is Sin”? Undoubtedly, some would not mind and might even seek them out, such as members of Westboro Baptist Church. But the vast majority of the consuming public would skip these options. Indeed, many might protest them. Consumer activism has been a significant check on race-based trademarks, leading many brands to change in the wake of the murder of George Floyd in 2020. For example, Aunt Jemima became Pearl Milling Co., the Washington Redskins became the Commanders, and Land O’Lakes removed the Native American woman from its logo.

Overall, this more open trademark landscape seems unexpectedly promising for the LGBTQ+ community. Nonetheless, we should remain diligent for changes in trademark uses. In addition to more nefarious uses of LGBTQ+ slurs as trademarks, those who own trademarks have the legal right and obligation to stop others’ use of those trademarks in ways that would confuse consumers. This could have the undesirable effect of preventing others in the LGBTQ+ community from using terms that have been reclaimed from their hate-connoting past, preventing rather than furthering free speech and expression.