Homey don't play that

The Washington Post is reporting that Damon Wayans wants to trademark the name “Nigga” for a retail line. However, there is a law against trademarking offensive words.

But the U.S. Patent and Trademark Office don't play that. Its blunt rejection of Wayans -- twice so far -- amounts to its own sock over the head. Officials won't comment on their decision, but trademark attorney Paul Fleischut of St. Louis says the dismissal is a no-brainer.
"There is an act by Congress that says you cannot register a word that is scandalous or that disparages a particular group," says Fleischut. Wayans's New York lawyers are pressing his case, but, says Fleischut, "It doesn't look good."

Of course Wayans seems to be arguing that his use of nigga is a different word from the offensive nigger, and so should be trademarkable. This is an interesting argument because it relies on treating a dialectal difference as a word difference. The only difference between nigger and nigga is the final r-dropping. r-dropping is a salient feature of African American Vernacular English (AAVE) (aka Ebonics to some), so the r-dropped version is marked as being an AAVE usage. Really what this comes down to is an in-group/out-group distinction. African Americans can use nigga but Whites cannot. So it’s not clear that nigga isn’t offensive—at least when used by some people.

This argument has not worked with the Patent and Trademark office in the past and it’s not likely it will work this time.

Oddly, a federal court rejected a petition to revoke the Washington Redskins trademark on the grounds it was offensive to Indians in 2003.

The Washington Redskins football franchise can keep its trademark name and logo because a group of activists did not provide enough evidence that the team's moniker was disparaging to Native Americans, a judge ruled yesterday.
U .S. District Judge Colleen Kollar-Kotelly threw out a federal board's 1999 decision to cancel six highly lucrative Redskins trademarks. She said she was not opining on whether the word "redskin" was insulting or not but concluded that the U.S. Patent and Trademark Office's board had relied upon partial, dated and irrelevant evidence submitted by the activists.
The judge also said Native Americans had little legal grounds to complain because they waited 25 years after the first Redskins trademark was registered to formally object to the team's name and images.

Geoff Nunberg served as an expert witness for the Indians in this case. He talks about it here and here.

But District Court Judge Colleen Kollar-Kotelly ruled that the evidence on the disparaging status of the word was inconclusive. Her arguments betrayed the mix of ignorance and illogicality that are depressingly common when courts stray into linguistic territory. Some examples:

The fact that a "not insignificant number of Americans have understood 'redskin(s)' to be an offensive reference to Native Americans," has nothing to do with whether Native Americans, themselves, consider the term "offensive," which would obviously be more probative or relevant.

Right. Even if non-Indians use redskin in a disparaging way, that doesn't mean that Indians don't take the label as a compliment. A rare people indeed, who don't care what others think of them -- you wonder why they filed the petition at all.

[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."

Ron Butters and David Barnhart worked for the defense and argued that the term is no longer in use and so not offensive.