It took five years and two U.S. Supreme Court cases, but last week, the band Thunderpussy finally scored a federal trademark.
The hard-rock, all-women group had applied for a trademark in 2015, in what they thought was a routine matter of business for a rising band that wanted to protect its intellectual property.
Three months later, the United States Patent and Trademark Office (USPTO) rejected the application, arguing the name Thunderpussy violated the 1946 Lanham Act, citing a vulgar definition from urbandictionary.com.
A band operating without a trademark is in a dangerous position, explained attorney Ben Kerr, who represented Thunderpussy pro bono in this matter. “Imagine an unscrupulous third party coming along and selling rip-off merchandise,” he said. “There’s no Tower Records anymore. That model has shifted to reliance on income from shows and from merchandise.” (The members of Thunderpussy were not immediately available for comment.)
Kerr filed an appeal that was placed in suspended animation as the USPTO waited for the Supreme Court to decide two cases about other trademarks that had been rejected for violating the Lanham Act: one brought by an all-Asian band named The Slants, the other from a clothing company whose name is an acronym for the phrase Friends U Can’t Trust.
The Lanham Act is a broad federal law governing trademarks, and specifically prohibits ones deemed “disparaging,” “immoral” and “scandalous.”
In a 2017 interview with the Seattle Times, The Slants founder Simon Tam rejected the USPTO’s “disparaging” argument, saying he’d chosen the name as “a gesture of empowerment — we need to be able to take stigmatizing labels and repurpose them.”
The Supreme Court found in his favor later that year, writing: “The disparagement clause violates the First Amendment’s Free Speech Clause.”
That decision had other consequences: In 2014, the USPTO had canceled trademarks for the Washington Redskins football team on disparagement grounds, after a campaign led by social worker Amanda Blackhorse (Navajo) and author Suzan Shown Harjo (Cheyenne and Hodulgee Muscogee). But in the wake of the 2018 decision about The Slants, the Fourth Circuit Court of Appeals vacated that decision — the Redskins’ trademark was reinstated.
Meanwhile, Thunderpussy was still in suspension: “disparaging” down, “immoral” and “scandalous” to go.
Two years later, in 2019, the Supreme Court ruled that the USPTO could not reject the clothing company’s name under the “immoral” and “scandalous” clauses of the Lanham Act.
“There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all,” Justice Elena Kagan wrote in the court’s opinion. “It therefore violates the First Amendment.” She also noted a lack of consistency in how the USPTO interpreted the Lanham Act, approving some trademarks and rejecting others that used the same potentially offensive language.
Kerr, Thunderpussy’s attorney, had argued the same point in his appeal to the USPTO.
“I mentioned over 40 trademark applications that had been accepted that included the word ‘pussy,’ ” he said. “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.”
The wheels of bureaucracy turned and, on April 4, Kerr finally received a letter from the USPTO granting Thunderpussy registered trademark number6,021,338.
Kerr, who has been practicing for 16 years, said he wasn’t particularly surprised by the protracted legal process. “And for women — and, in the case of The Slants, people of color — everything is at least twice as hard,” he 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.”