July 16, 2005

Disparaging trademarks and the lexicography of tools

Back in October of 2003, Geoff Nunberg wrote about how the DC District Court reinstated the trademark of the Washington Redskins, overruling the earlier decision of the Trademark Trial and Appeal Board, "which ruled in 1999 that the mark was improperly registered back in 1965, since the Lanham Act forbids the registration of marks that are 'disparaging'". Now (according to Abnu at Wordlab),

The San Francisco Women's Motorcycle Contingent, the nonprofit lesbian motorcycle group that has become internationally known for riding in the lead position at San Francisco's pride parade every year for nearly three decades, has been refused a trademark for its moniker, Dykes on Bikes.

This was an examining attorney's preliminary decision, and the case now goes to the Trademark Trial and Appeal Board. For the details, Abnu refers us to an entry at Martin Schwimmer's Trademark Blog, which quotes the examining attorney as observing that

A disparagement claim must show that the proposed mark (1) would reasonably be understood as referring to the disparaged party; and (2) is in fact disparaging, that is, would be considered offensive or objectionable by a reasonable person of ordinary sensibilities.

and that

The fact that some of the disparaged party have embraced or appropriated the term DYKE, does not diminish the offensiveness of the term that has historically been considered offensive and derogatory.

Furthermore, the examining attorney gave a great deal of weight to lexical reference works:

Dictionary definitions alone may be sufficient to establish that a proposed mark comprises scandalous matter, where multiple dictionaries, including at least one standard dictionary, uniformly indicate that a word is vulgar, and the applicant’s use of the word is limited to the vulgar meaning of the word.

Presumably the Trademark Trial and Appeal Board will uphold the examining attorney's rejection, which seems to reflect the wording of the Lanham Act, whatever common-sense justice may say in this case. (Though the group's submissions to the USPTO, linked below, make a pretty persuasive case with respect to the non-disparaging history and current usage of the word dyke within its subculture of origin.)

Too bad that Dykes on Bikes can't get their case into the DC Circuit Court, where the judge ignored what Geoff describes as

a pretty strong portfolio of evidence to support the claim that redskin was a disparaging term when the mark was originally registered and remained so afterward. We had print citations for the word going back to the nineteenth century, like a passage from the 1910 edition of the Encyclopedia Britannica that described the word as not being "in good repute."

The contemporary evidence would include the AHD's characterization of redskin as "offensive slang", Merriam-Webster's 3rd Unabridged which says that it's "usually taken to be offensive", and so on.

Maybe Dykes on Bikes could re-gloss themselves as the Diagonal Cutting Pliers on Bikes? Though this page on a Human Resources site suggests that it might not help their case.

And curiously, there wouldn't be much dictionary evidence to bring forward. Dykes (I guess that's the spelling) in the meaning of "diagonal cutting pliers", isn't in the AHD, M-W Unabridged, the OED, or Encarta.

I think this is really strange. As far as I know, dykes is the standard American term for this ubiquitous and useful tool. In my experience as a child working on bicycles and later cars with my friends, as a mechanic in the army, and hanging around electronics technicians at Bell Labs, "dykes" was as common as a term as hacksaw or chisel. I mean, what else would you call them?

I say "them" because as a tool term, dykes is always plural, like scissors. And similarly, the derived verb loses the -s. For example, if you remove a component from a circuit by cutting the connections, you "dyke it out" (though I've just discovered that Google has quite a different notion of what this phrase means).

Of course, the derived verb is also missing from all the dictionaries I've consulted. Either I've slipped in from some parallel linguistic universe, or the profession of lexicography is falling short in the domain of tools.

[SF Chronicle story; USPTO case file. In the case file (under "Paper Correspondence Incoming, 28 April 2005") you'll find declarations by Jesse Sheidlower and Ron Butters, among others. For your reading convenience (and they're worth reading), I've snipped out those two declarations from the 814-page .pdf of the submissions that I downloaded from the USPTO.]

[Update: more on the lexicography of dykes/dikes at Language Hat.]

[Update #2: more on this by Geoff Nunberg here.]

Posted by Mark Liberman at July 16, 2005 08:10 AM