US Dykes on bikes win right to trademark

Last year I travelled to the US and had the privilege of meeting the legal director fo the National Center for Lesbian Rights, Shannon Minter, and other staff at their headquarters in San francisco.

Shannon told me of an amazing case that they had been involved with for several years, when the Dykes on Bikes, wanting to preserve their intellectual property, tried to have their name registered as a trademark.

All pretty straightforward, one would think, except that the relevant government official considered that the word “dyke” was pejorative and offensive, and refused to register the trademark.

The matter at that stage had got to the point of collecting antropological evidence to prove that the word “dyke” was not som eoffensive word, but a word of pride and dignity.

Well fast forward to this year.

This is what the National Center for Lesbian Rights had to say:

(San Francisco 12 July 2007) – The San Francisco Women’s Motorcycle Contingent announced today that the U.S. Court of Appeals for the Federal Circuit issued a final ruling yesterday affirming the group’s trademark of the name “DYKES ON BIKES.” The Court of Appeals rejected the argument that the name “DYKES ON BIKES” was disparaging to men. Barring Supreme Court intervention, yesterday’s decision removed the last obstacle to registration of the trademark.

“After a three year court battle, we are thrilled ‘DYKES ON BIKES’ will be protected under trademark and recognized as a celebration of our identity,” said Vick Germany, the group’s president. Soni Wolf, SFWMC secretary said, “This is a great victory for dyke pride and visibility — not just for our group, but for lesbians across the country who value ‘DYKES ON BIKES’ as an affirmation of lesbian strength and resilience.”

“We are delighted that ‘DYKES ON BIKES’ has been vindicated and that it is now clear that asserting pride in being ‘DYKES ON BIKES’ does not impact others negatively,” said Brooke Oliver, the lead attorney on the case. “A lone person with a political objection to women’s political speech does not have standing to object to a trademark.”

“The ‘DYKES ON BIKES’ trademark is an important symbol to the lesbian, gay, bisexual and transgender community,” said Greg Gilchrist of Townsend and Townsend and Crew. “Although it took a long time, the Trademark Office eventually agreed that the mark deserved fair and equal protection under the trademark laws. In this latest proceeding, we are grateful that the Federal Circuit agreed that bias against the San Francisco Women’s Motorcycle Contingent was no basis for further delay.”

The Trademark Office initially rejected the group’s application for a trademark in 2004, on the ground that the name “DYKES ON BIKES” is allegedly disparaging to lesbians. In response, Brooke Oliver and the National Center for Lesbian Rights submitted more than two dozen expert declarations from scholars, linguists, psychologists, and activists showing how the word “dyke” has evolved to become a positive term and that lesbians view “DYKES ON BIKES” as a symbol of pride and empowerment. The Trademark Office then denied the request a second time.

After bringing in additional assistance from the law firm of Townsend and Townsend and Crew, the San Francisco Women’s Motorcycle Contingent appealed the denial. In a decision issued December 6, 2004, the Trademark Office reversed itself and granted the application.

In February, 2006, an individual filed an opposition to the trademark, alleging the name “DYKES ON BIKES” was disparaging to men, as well as accusing group members of misconduct toward men. On September 13, the U.S. Trademark Trial and Appeal Board dismissed the opposition. In its decision yesterday, the Court of Appeal affirmed the dismissal. The Court of Appeal held that the name “DYKES ON BIKES” “would have no implications for a man” and that the individual who filed the opposition had failed to show that “his belief is shared by others.”

The San Francisco Women’s Motorcycle Contingent, which is a non-profit group, was forced to seek registration of the name “DYKES ON BIKES” when an individual, unassociated with the organization, attempted to use the phrase for commercial purposes and wanted to charge contingents throughout the country for its use. The San Francisco Women’s Motorcycle Contingent organization decided to obtain a trademark to protect the non-commercial use of the name and its meaning to the LGBT community from private commercial use.

The San Francisco Women’s Motorcycle Contingent was represented pro-bono by Brooke Oliver and Pablo Manga of Oliver-Sabec, P.C., Gregory Gilchrist, Gia Cincone, and Raquel Pacheco of Townsend and Townsend and Crew LLP, and the National Center for Lesbian Rights.

Oliver-Sabec P.C. is a boutique law firm with an international practice, often representing clients in high-profile, progressive transactions and litigation. The Firm’s mission is to protect the icons, images, and entities of social change, whether the vehicle for change is embodied in a business venture, in art, film, music, technology, or some other means of creative expression. In doing so, we have established an institution that permits us to work with creative people who are doing amazing things in the world. www.oliversabec.com

Townsend and Townsend and Crew LLP has approximately 200 attorneys in eight offices. Townsend’s Pro Bono program, an important aspect of Townsend’s commitment to the communities in which it practices, is dedicated to providing legal services to members of the community who do not otherwise have access to the legal system. www.townsend.com

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. www.nclrights.org