Add that TM: Thunderpussy wins five-year trademark battle

Once again, a band has won a long legal battle over the right to trademark its name.

The Seattle-based band Thunderpussy first filed a trademark application five years ago and had their application denied on the grounds that the name was “scandalous” and “immoral.” 

In denying the application, the U.S. Patent and Trademark Office cited an Urban Dictionary definition of the word, claiming the word “pussy” was vulgar and therefore the band’s name was unsuitable for legal trademark protections. 

On the other hand, as Jezebel reported, the USPTO database has several other approved applications for items with names including the words “vagina,” “coochie,” “dick” and even “pussy.” Two other applicants who had been denied trademark applications had also appealed the decisions, both of them going to the Supreme Court and ultimately winning. 

The statue in question? The 1946 Lanham Act, an old and misunderstood — and infrequently applied — law that says trademarks cannot be approved if the language included is deemed offensive or inappropriate. 

Does any of this sound familiar? It should: It’s very similar to the legal saga of the former West Coast band The Slants, whose founder and bassist, Simon Tam, fought the USPTO all the way to the Supreme Court over the right to trademark the band’s name, a case he won in 2017 after an eight-year battle. 

The wheels of fate would also find, eventually, in Thunderpussy’s favor. 

In 2019, the Supreme Court ruled the USPTO could not use the Lanham Act’s “immoral” and “scandalous” clauses to deny the trademark application of a clothing company — FUCT (Friends U Can’t Trust, for those wondering) — which had faced arguments like those posed to The Slants. 

“There are a great many immoral and scandalous ideas in the world (even more than there are in swearwords), and the Lanham Act covers them all,” Justice Elena Kagan wrote in that decision. “It therefore violates the First Amendment.” She also scolded the USPTO for how it interpreted and applied the Lanham Act, approving some trademark applications while denying others .

When his case was working up and through the Supreme Court, Tam noted repeatedly how many other trademarks featuring the word “slant” had been approved, but only his, filed by a man of Asian American descent and on behalf of an Asian-American band, had been denied for being insulting to, that’s right, Asian Americans. 

The same was also true for Thunderpussy, the band’s attorney, Ben Kerr, a point he argued during their case. In fact, at least 40 other trademark applications with the word “pussy” had been approved. 

“Human discretion enters into the process, which is one person forming an opinion based on an internet search — but the implications for the band are enormous,” he told the Seattle Times. 

He also credited The Slants and Tam for the groundbreaking work and arguments made in that case, helping Thunderpussy win the right to trademark their name this week. 

“For women — and, as in the case of The Slants, people of color — everything is at least twice as hard,” Kerr said. “I would just note how difficult and what an uphill climb it is for creatives to sustain themselves financially, especially in these times. So Thunderpussy securing their trademark is a small but important win.” 

Amber Healy

I write about music policy and lawsuits because they're endlessly fascinating.

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