After Supreme Court Decision, People Race To Trademark Racially Offensive Words

Racially offensive trademark applications are piling up at the U.S. Patent and Trademark Office. The Supreme Court decided last month the federal government couldn't ban trademarks simply because they're disparaging. NPR's Planet Money team talks to some of the people trying to trademark racial slurs.

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Racial slurs can now be registered as trademarks - theoretically, at least. The Supreme Court decided in June that the government can no longer ban a trademark simply because it's disparaging. Ailsa Chang from NPR's Planet Money podcast talked to some people who are now trying to trademark slurs. A warning - her report includes some very offensive words. They're important to the story, though, because that sort of language is what this debate is all about. The piece runs just under four minutes. Here it is.

AILSA CHANG, BYLINE: Ed Timberlake is a trademark lawyer who's convinced the floodgates have opened. To him, what the Supreme Court has done is given the bigots of the world a green light to register the most disgusting trademarks ever. He's been making a list of all the trademark applications filed the last five weeks since the court's decision.

ED TIMBERLAKE: Gutter sluts, chink, damn vegans, nigga, nigga, nigga, nigga and niggademus (ph).

CHANG: Wow. Wait; how many niggas did you just list off there?

TIMBERLAKE: There - at least five here, and there are probably more since then.

CHANG: So at least five have been filed since the Supreme Court decision?

TIMBERLAKE: Yes - a couple on the day of the Supreme Court decision.

CHANG: Wow, people were ready.

I decided to track down whoever filed those two applications for N-I-G-G-A on the same day the Supreme Court decision came down. Whoever it was, they were clearly determined, poised to pounce and own this word before anyone else. And it turns out both of those applications that day were filed by the same man.

CURTIS BORDENAVE: I'm in Columbus, Miss., right near the Alabama state line.

CHANG: Curtis Bordenave calls himself a consultant who helps businesses develop product lines and brands. He's filed a ton of trademark applications over the years, but trademarking nigga was about something very personal.

BORDENAVE: I thought that I had a duty - you know what I'm saying? - and a responsibility to protect that word, to secure that word - you know what I'm saying? - and to make sure that it's used in a way that I think would not disparage people.

CHANG: The race to trademark nigga is a race against the racists. Bordenave, who's African-American, plans to sell T-shirts that celebrate themes like unity and brotherhood, hoping people will connect those ideas with the nigga brand. It's his way of reclaiming the word. And he says he's glad he filed his trademark applications immediately because a few days later, another guy applied to trademark the same word. And what gave Bordenave a bad feeling was that guy also applied to trademark the swastika the very same week.

BORDENAVE: I don't know that party's intent. It doesn't seem like a good intent to want to have those two marks together.

CHANG: I wondered about the intent, too, so I set off to find this other guy. And he turned out to be a patent lawyer in Alexandria, Va., Steve Maynard.

Why swastikas?

STEVE MAYNARD: Because the term has an incendiary meaning behind it.

CHANG: Yeah.

MAYNARD: And it's currently used as a symbol of hate. And if we can own the brand, we will be able to control the sale of the brand and the use of the brand as well.

CHANG: Oh, so you're trying to basically grab the swastika so real, actual racists and haters can't grab the swastika as a...

MAYNARD: Correct.

CHANG: ...Registered trademark.

MAYNARD: Correct.

CHANG: But there's a catch. Maynard can't just get the trademark, put it in a drawer and make sure nobody else uses it. To keep a trademark, he actually needs to sell a swastika product. So he will - blankets, shirts, flags. But he plans to make these products so expensive he's hoping no one will ever buy them.

MAYNARD: If you want to buy that swastika flag, you've got to buy it through us. And it's going to be a thousand dollars each.

CHANG: This pre-emptive strike against bigotry still has strategic flaws. You get trademark registration only if you can show consumers will connect your trademark with you, the maker of the product. The swastika and all its history is so ingrained in people's minds already, it's unlikely anyone would ever connect the symbol to a brand of blankets. So Maynard probably won't get that trademark. But then again, neither will anyone else. Ailsa Chang, NPR News.

[POST-BROADCAST CORRECTION: In this report, we say that a few days after Curtis Bordenave filed an application to register "Nigga" as a trademark, Steve Maynard's Snowflake Enterprises LLC applied to do the same thing. In fact, Bordenave's first application to trademark the word was filed on June 19, 2017, the day of the Supreme Court decision. Later that same day, Maynard's Snowflake Enterprises filed an application. Bordenave filed a second application to register "Nigga" on June 19. Then on June 27, Maynard's Snowflake Enterprises filed two more applications to register the word.]

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