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Sorry Justice Alito, “The Slants” is Not Okay

Posted in Branding, Famous Marks, First Amendment, Guest Bloggers, Law Suits, Mixed Bag of Nuts, Trademarks

– Jason Voiovich, Virtual Chief Marketing Officer, Vojvdec & Sigma

According to the unanimous ruling by the US Supreme Court handed down last month, failing to allow registration of trademarks such as the “Redskins,” “Fighting Sioux” and “The Slants” violates the free speech clause of the First Amendment to the US Constitution. Writing for the court, Justice Samuel A. Alito Jr. wrote that the ban, “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

According to those of us charged with building a marketing strategy grounded on those trademarks, this has nothing to do with free speech.

Filed under the category of “just because you can jump off a cliff doesn’t mean you should,” just because you are able to register a “disparaging trademark” does not mean it makes any sense to do so. Putting aside the issue that commercial speech is not the same as free speech in the legal sense of the word, marketing strategists hoping to use the ruling to build their brand strategy are misguided.

The marketing argument to employ a disparaging trademark seems to boil down to two key points:

First, the greatest sin in branding is being forgotten, not being offensive. By touching on a deeper seat of emotions – in this case, offending a ground of people (usually those with a lower power status) – the brand will drive stronger emotional attachment. Negative attachments work as well (or perhaps sometimes better) than positive ones. “The Slants” hope to use this attachment to build attention for their band, generate album downloads, and boost attendance at live shows.

Second, and more practical, are those brand strategies built on historical trademarks. They may not have been widely recognized as offensive or disparaging at the time, but as public opinion has shifted, they find themselves in an uncomfortable position. To jettison the trademark also discards many decades of brand awareness and association. The Redskins NFL franchise certainly falls under this category. Dan Snyder’s team is the third most valuable team according to Forbes Magazine, clocking in at over $1.6 billion.

Both arguments are bunk.

The key to memorability is meaningful differentiation, not offense. Strategists who choose to employ a disparaging or offensive trademark conflate brand awareness and buzz with true emotional bond. In other words, just because your audience knows about you or shares your brand with their family and friends, does not mean that you have created a sustainable emotional connection with your audience, nor does it mean that you will achieve your ultimate business objectives. While they might argue that as artists they have more liberty to offend the status quo, members of The Slants are more likely to generate a flash in the pan. They will drive short-term results at the expense of a long-term strategy. In three months, will anyone remember who they are? In a year?

But what about “classic” trademarks? Founded in 1932, the Redskins NFL franchise is nearing the century mark. Very few organizations can boast that type of longevity; the cost to replace and rebuild a brand in its eighth decade is not trivial. It’s worth the money. Branding is all about change, ever-chasing the “little bit new.” (If you’re wonky, the Wundt Curve is a perfect visual explanation.) In a sentence, it works like this: What was once novel and exciting becomes stale and expected. That change is psychology happens quickly. It was once thrilling to have WiFi service on an airplane; now we expect it – and are angry if it is not working. Brands must continually push the envelope to stay relevant and interesting.

However, if brands go too far, they risk being “too edgy” and prompting a backlash. “Just enough new” is a hard balance to strike, and it may seem like this is an argument to keep the Redskins brand and simply make some minor adjustments. It’s not. Public opinion has effectively pushed the trademark into the “backlash” category. Small changes will not work any longer. The Redskins need to hit the reset button. While Snyder is right to be concerned about valuation, the comparatively young Houston Texans franchise achieved a $1.3 billion valuation in just 17 years in the league, nearly matching the value of its more venerable competitor. It can be done.

More to the point, it should be done. Whatever your opinion on the issues of free speech and commercial speech, or your opinion on the validity of the Supreme Court ruling, using (or continuing to use) disparaging trademarks is a poor marketing strategy.