Keggy the KegTM was created in 2003 by Dartmouth College humor magazine, The Jack-O-Lantern. The Jack’O periodically trots Keggy out to the amusement of all.
Said another way: The Jack-O-Lantern created Keggy the Keg. It has been using the words KEGGY THE KEG and various incarnations of the costumed mascot for about 17 years. Sounds a lot like trademark rights to me.
But the folks at Dirtymouth would like you to know that preventing them from using Keggy the Keg to sell their merchandise is a “hindrance to [their] expression as Dartmouth students.” Also that Dirtymouth’s use of Keggy the Keg is a “parody” and their “apparel and accessories” are being sold to “spread awareness of their political message.”
Let’s take those claims one at a time:
Selling merch to make money is NOT “expression.” It’s commerce and using someone else’s trademark in commerce is infringement.
“Where is Keggy? The answer is, Keggy is dead. Since 2003, an organization has claimed that they have the sole copyright claims on Keggy the Keg. “We disagree. “Keggy has taken on a life of its own as the mascot of Dartmouth College, it’s students, alumni, and the culture of the university. Preventing and isolating the use of Keggy is a hindrance to our expression as Dartmouth students. The Keggy as we know it is dead. Now, Dirtymouth presents to you our own parody of this absurd copyright claim: Keggy is Dead.
Any associated Keggy is Dead apparel and accessories are to spread awareness of our political message.”
There are lots of steps involved in bringing a trademark application through to registration. As a trademark attorney, I’m used to ticking off each of those steps knowing that my client is getting ever closer to a registration.
It’s rare for an application to go backward but it can happen. When it does, it’s usually some minor and hyper-technical issue. We get it fixed and the application gets back on track.
Recently, I saw a nightmare that was being foisted on a company in my co-working space: Their trademark registration was issued and then . . . immediately canceled.
The Trademark Office examiner checked the application and approved it for publication.
The application was published for opposition.
The applicant received a Notice of Allowance.
The applicant filed a Statement of Use.
The Statement of Use was reviewed by the Trademark Office and accepted.
The Trademark Office printed a Certificate of Registration and then
Canceled the registration the instant it was completed.
It’s like that moment when they announced best picture at the 2017 Oscars®. It’s been giving me nightmares ever since.
Fast forward 3 years. The Redskins have been renamed, not because a court ordered them to, but because sponsors have pressured the team’s owners to finally do the right thing. Everyone expects the Cleveland Indians, the Cincinnati Reds, and the Atlanta Braves to follow.
Much has already been written and will be written on this topic. What I see is a wealth of evidence that societal and market pressure can be valuable tools in the fight against racist branding.
Most of the applicants who rushed to register disparaging and scandalous trademarks after the Tam ruling didn’t have existing brands. They were people who thought they saw a financial opportunity where none actually existed. They applied to register a trademark but never got a registration because they could never show they were actually using the trademark to sell the stuff covered by the application. Check out these numbers:
Applications with disparaging or scandalous words
Number applications filed
% that have reached registration as of 7/2020
If you break it down by each disparaging and scandalous word, the differences become much more stark. For example, none of the applications to register the n-word filed in 2017 have become registrations as of July 2020.
I’d like to think these numbers show that hate doesn’t sell.
Here’s the full data set. What do you see that’s interesting in these numbers?
 The scandalous words included were “fuck”, “shit”, and “asshole”. The disparaging words included were the n-word, “redneck”, “pansy”, and “dyke”. There was a longer list of disparaging words that I checked but there had zero applications filed in 2017.