As kids, many of us learned the old nursery rhyme “Sticks and stones will break my bones but names will never hurt me.” But this is far from the truth. Words have powerful meaning—both the ones we are called and the ones we identify ourselves with. For members of ethnic minority groups, certain words are doubly loaded as they can be considered both racial slurs and terms of empowerment when they are reclaimed. This summer, there has been an increase in the number of applications to trademark these terms—raising questions about who has ownership over such words and whether or not it is offensive when they are used, especially by a member of the particular group it is associated with.
Nine applications to register derogatory words and symbols have been filed with the US Patent and Trademark Office following a US Supreme Court ruling in June that barring such trademarks was unconstitutional.
The n-word and swastikas are among the culturally charged imagery and language that both individuals and companies are attempting to register for products, including energy drinks, sweatshirts, and fragrances, Reuters reports.
There is no simple answer here. In part, because what’s considered offensive can rest largely in the eye of the beholder. Language is dynamic, ever evolving and complex—and how it is used and by whom all come into play. One’s social and cultural identity do make a difference in how they use and are impacted by certain words. Black people, for instance, have a complex relationship with the n-word. What was once considered the most vile and degrading of racial epithets in the English language, changed meaning when the ending of the word changed from “er” to “a”. And it is a word, that even among us, that may be used to denote everything from kinship, community, negative behavior or something else altogether. There are as many opinions about the use of the word and its acceptability among us as there are black people themselves. And it is not a debate that is likely to go away anytime soon. And this desire to have in-group privilege and reclaim certain words is not limited to black people.
[Previously, the US Patent and Trademark Office had a practice of regularly rejecting applications “which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute,” under Section 2(a) of the Trademark Act of 1946.”] On June 19, that practice was officially upended with the case of Matal v. Tam. In a unanimous decision, all eight Supreme Court justices (Justice Neil Gorsuch did not take part in the vote) agreed that the disparagement provision “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
The case involved an Asian-American band from Portland, Oregon, that sought to trademark the band’s name, which is typically considered an Asian slur. [...]
In a New York Times op-ed, the Slants frontman Simon Tam argued that their case was about reclaiming the power of a disparaging word. “We had called ourselves the Slants as a way of seizing control of a racial slur, turning it on its head and draining its venom,” Tam wrote.
While many feel that this decision is opening the door to something which could have potentially negative impact down the road and erode some previously held cultural norms, it is also demonstrating that the use of these terms is context specific. The swastika, before its use by the Nazis, was a holy sign and symbol used for thousands of years by Indigenous tribes and is a prominent symbol in Buddhism, Hinduism, Jainism and Odinism. This is not to say that it does not have a particular meaning and impact when it is viewed by people of Jewish faith. It simply means that context matters and that there is no one size fits all solution to how certain words and images can be used by ethnic groups.
Attorney and trademark expert David Bell told Reuters that the Supreme Court’s ruling and this latest barrage of trademark applications are the opening of Pandora’s box.
“We’re now opening the door, chipping away at what’s acceptable under cultural norms,” he said. “I think it could be a slippery slope, where you get more people and companies thinking, ‘This is okay.’”
There are often arguments made that if one ethnic group can use a word, everyone should be able to use it since its unrealistic to try to create ownership over words and ideas. Some have even gone so far as to say it is censorship to say that people outside of those ethnic groups cannot use those words. But the reality is that the context is, in fact, different. We do not live in a world devoid of inequality, where all experiences are the same. Certain words do have a differential impact depending on the different bodies from which they come. There is generally no casual, fun way for these words and symbols to be used by non-members of the cultural groups with which they are associated. There is no one answer to this issue and it is most certainly messy to figure out—but it is important to begin to understand how language matters and can be claimed or rejected by members of marginalized communities. These legal cases are the continuation of a critical conversation that is needed, now more than ever.