Is It Tam to Rethink Marketing? Trademarking Shock Advertising
There’s no better time to talk about shock advertising than during the campaign of Donald J. Trump. The ‘Teflon’ candidate has rewritten the rulebook on political manuevering, by doing and saying everything that grabs a headline. Forget the information economy. We are in the age of the attention economy. There is enormous value to be captured simply by commanding the attention of the consuming public, if only for a fleeting moment.
For a long time, shock marketing has been limited to a select few companies pursuing short term plays. These are generally smaller, lesser known concerns that are trying to capture a quick slice of market share and are not concerning with building a durable brand. In addition to basic decency, the trademark rule against registration of immoral, scandalous or disparaging marks is a fundamental reason why durable brands aren’t built around sensitive subject matter. Without the ability to carve out permanent space in brand land (via USPTO registration), businesses interested in long term market positioning were forced to steer clear of marks, slogans, and design logos that reference immoral and scandalous matter. Although the definition has always been a little fluid, pushed back and forth by case after case, the basic policy has stood for a while – the USPTO won’t grant monopoly rights to shock marketing tools.
The Washington Redskins football team has faced an uphill battle against the USPTO since controversy over the team name flared up in 2013. The TTAB decided to cancel the team’s marks based on findings that the name indeed is too offensive to be registered. The team is appealing that decision but another case from a few months ago may break open the door for the Redskins and an ocean of new applicants. In re Tam involves a band, The Slants, that wants to register its name. Based on the historically disparaging nature of the term, the USPTO refused registration. Importantly in this case however, the band members are Asian-American and asserted a right to use the name not in a way that disparaged themselves but just the opposite – reclaim the term in a positive light. On appeal, the Federal Circuit reversed the refusal and put forth a fairly sweeping bit of jurisprudence – that the government has no right to censor marks, via the prohibition on immoral or scandalous matter, based on the message a mark may or may not communicate. The opinion seems to go further than requiring an applicant to demonstrate a legitimate purpose. Ultimately, it isn’t certain that this ruling will unhinge the entire policy against ‘immoral’ trademarks, but it certainly lays the groundwork for a major shift towards greater registrability.
Moments before this post was scheduled to go live, the USPTO filed its appeal to have the case heard by the U.S. Supreme Court. We’ll watch to see how this plays out – a frenzy to register formerly off-limit marks would be almost sure to happen. After all, shocking the audience pays dividends these days. Just ask one Donald Trump.
*Thanks to the band for allowing us express permission to use their logo.
Is It Tam to Rethink Marketing? Trademarking Shock Advertising
There’s no better time to talk about shock advertising than during the campaign of Donald J. Trump. The ‘Teflon’ candidate has rewritten the rulebook on political manuevering, by doing and saying everything that grabs a headline. Forget the information economy. We are in the age of the attention economy. There is enormous value to be captured simply by commanding the attention of the consuming public, if only for a fleeting moment.
For a long time, shock marketing has been limited to a select few companies pursuing short term plays. These are generally smaller, lesser known concerns that are trying to capture a quick slice of market share and are not concerning with building a durable brand. In addition to basic decency, the trademark rule against registration of immoral, scandalous or disparaging marks is a fundamental reason why durable brands aren’t built around sensitive subject matter. Without the ability to carve out permanent space in brand land (via USPTO registration), businesses interested in long term market positioning were forced to steer clear of marks, slogans, and design logos that reference immoral and scandalous matter. Although the definition has always been a little fluid, pushed back and forth by case after case, the basic policy has stood for a while – the USPTO won’t grant monopoly rights to shock marketing tools.
The Washington Redskins football team has faced an uphill battle against the USPTO since controversy over the team name flared up in 2013. The TTAB decided to cancel the team’s marks based on findings that the name indeed is too offensive to be registered. The team is appealing that decision but another case from a few months ago may break open the door for the Redskins and an ocean of new applicants. In re Tam involves a band, The Slants, that wants to register its name. Based on the historically disparaging nature of the term, the USPTO refused registration. Importantly in this case however, the band members are Asian-American and asserted a right to use the name not in a way that disparaged themselves but just the opposite – reclaim the term in a positive light. On appeal, the Federal Circuit reversed the refusal and put forth a fairly sweeping bit of jurisprudence – that the government has no right to censor marks, via the prohibition on immoral or scandalous matter, based on the message a mark may or may not communicate. The opinion seems to go further than requiring an applicant to demonstrate a legitimate purpose. Ultimately, it isn’t certain that this ruling will unhinge the entire policy against ‘immoral’ trademarks, but it certainly lays the groundwork for a major shift towards greater registrability.
Moments before this post was scheduled to go live, the USPTO filed its appeal to have the case heard by the U.S. Supreme Court. We’ll watch to see how this plays out – a frenzy to register formerly off-limit marks would be almost sure to happen. After all, shocking the audience pays dividends these days. Just ask one Donald Trump.
*Thanks to the band for allowing us express permission to use their logo.