July 17, 2005

Adverbial license

As Mark observes, there are no end of ironies in the Patent and Trademark Office's refusal to register the mark DYKES ON BIKES on the grounds that dyke is vulgar, offensive and scandalous. As the San Francisco Chronicle explained the decision:

The USPTO referred to an entry in Webster's dictionary, which says "dyke" is "often used disparagingly."

"The examining attorney found it to be offensive to a significant portion of the lesbian community," Jessie Roberts, a trademark administrator with the U.S. Patent and Trademark Office, was quoted as saying. "And we're also looking out for the sensitivities of the general public more than that of a specific applicant."

What the examining attorneys failed to understand, of course, is that that "usually" in Merriam-Webster's usage label is there precisely to exempt ironic or defiant uses of the term, particularly by the people it applies to. Since their founding, Dykes on Bikes have made it their mission to épater the straightoisie, and everybody knows it.

But there's a further irony here, as well, when you look at the way a similar usage label was interpreted by the D.C. District Court Judge Colleen Kollar-Kotelly last year in overturning the Trademark Board's decision that the mark REDSKINS disparages American Indians.

As Kollar-Kotelly wrote in her decision:

[T]he dictionary evidence only states that the term 'redskin(s)' is 'often offensive,' which, as Pro-Football observes, means that in certain contexts the term 'redskin(s)' was not considered offensive. In fact, the TTAB concluded that the term 'redskin(s)' means both a Native American and the Washington-area professional football team. The fact that it is usually offensive may mean the term is only offensive in one of these contexts."

For sheer obtuseness, that could go mano-a-mano with the decision on dyke. I mean, when Merriam-Webster's labels nigger as "usually offensive," we don't take that as meaning that a candy company would have lexicographical license to market Grinnin' Nigger brand chocolate bars.

Speaking as a sometime usage editor for the American Heritage, I suppose this all suggests that dictionaries should try to make it clear in their front-matter what "usually" and the rest actually mean in usage labels. But I doubt if there's anything we could do that would keep courts and attorneys from reading the entries to suit their purposes.

This said, I can see some legal complications to suspending the "disparagment" condition for reclaimed epithets like dyke. For one thing, marks are transferable, and the intentions of the original registrants don't always go along with them. What if the DYKES ON BIKES mark were acquired by the Family Research Council for use on a series of homophobic t-shirts -- would that give a lesbian group grounds for a petition to cancel the mark? And if the registrant's intentions alone were decisive, you might be disposed to credit the Redskins' claim that they intended the mark to "honor" Native Americans (file under "butter wouldn't melt"). But most Indians wouldn't buy that. In the end, the determination that a mark is disparaging depends not just on the user's intention but on the perception of that intention by the group the term refers to.

Posted by Geoff Nunberg at July 17, 2005 03:22 PM