Sonia K. Katyal - UCLA Law Review

1630 57 UCLA LAW REVIEW 1601 (2010)
for F*A*G* for the term FABULOUS AND GAY but allowed a trademark for
QUEER EYE FOR THE STRAIGHT GUY and TECHNODYKE during the same
period. 125
How can these outcomes be reconciled with one another?
Perhaps precisely because of the wide degree of variance that the PTO has
demonstrated regarding marks affecting the LGBT community, the Dykes on
Bikes case prompted a visible public outcry. The San Francisco Board of
Supervisors even adopted a municipal resolution to convince the PTO to reverse
its decision. 126
Eventually, the PTO reconsidered the case, reaching a different
outcome after reviewing evidence showing that the term was no longer considered
to be disparaging. 127
Central to the PTO’s findings, most likely, were the
hundreds of pages of academic and popular evidence that had been submitted to
show the changing receipt and use of the term. One scholar, Carolyn Dever, an
associate professor of English and Women’s and Gender Studies at Vanderbilt
University, argued:
“Dyke” has been claimed by lesbians as a term of pride and empowerment,
as a sign of the refusal to be shamed or stigmatized by lesbian sexuality and
social identity and as a symbol of unity within lesbian communities past,
present and future. 128
Yet even after the mark was issued, a man emerged to argue that the term was
offensive—not that it was disparaging to lesbians (as the PTO had once
concluded), but rather, that the term DYKE was disparaging to him, personally, as
a male. 129
The man lost on the grounds that he had failed to show a “reasonable”
basis for his belief that he might be damaged by the mark’s registration. 130
C. Racial Branding and Cultural Externalities
As the Dykes on Bikes case demonstrates, the law draws a distinction
between the generalized harm that is presumably posed to the public by immoral
or scandalous marks, and the specific harm that is addressed by disparaging marks
towards a targeted group. This difference has meant that in the context of
(on the grounds that the term queer was derogatory to gays and lesbians). See id. (citing Gibbons,
supra note 81, at 223–24).
125. Xeni Jardin, USPTO Nixes Trademark App for “Dykes on Bikes,” BOINGBOING, July 14, 2005,
http://www.boingboing.net/2005/07/14/uspto-nixes-trademar.html. See Anten, supra note 8 (giving
various examples).
126. Julian Guthrie, Trademark Office OKs ‘Dykes on Bikes:’ Motorcycle Group’s Name on Its Way to
Becoming Registered, S.F. CHRON., Dec. 9, 2005, at A2.
127. See Anten, supra note 8, at 420.
128. Guthrie, supra note 126, at A2.
129. McDermott v. San Francisco Women’s Motorcycle Contingent, 81 U.S.P.Q.2d 1212, 1213
(T.T.A.B. 2006).
130. Id. at 1216.