Rough Ride 

Suppose you own a line of clothing with the brand name Evil Pussy or you manufacture beverage containers filled with booze under the brand Suck & Blow. Or, imagine you have a successful television show on the Bravo network called Queer Eye for the Straight Guy. Now, further suppose that you want to protect your brand name by trademarking it. No problem: the federal government is happy to oblige.

But, instead, let's say you are a leather clad, mostly lesbian motorcycle contingent in San Francisco that, for the last thirty-five years, has thrilled hundreds of thousands of spectators who come to see you rev your engines and vroom down Market Street at the city's annual gay pride parade. Let's further say that, just like the owners of Evil Pussy and Suck & Blow and Queer Eye, you too want to trademark your name— well, that, as it turns out, is a much rougher ride.

Which is why in June, when the thirty-sixth annual San Francisco Pride Parade is once again led by the earsplitting, earth shattering roar of hundreds of women who proudly call themselves Dykes on Bikes, there may be a little something extra to howl about. After a legal fight none of these women ever imagined, the federal government appears to be this-close to granting the Dykes on Bikes the trademark they applied for to protect their name.

Their fight has, so far, taken nearly three years, a bevy of lawyers, and unprecedented efforts by some of the world's leading experts—on everything from lesbian life to linguistics—to explain to the United States Patent and Trademark Office (USPTO) why the word “dyke” is neither “disparaging” nor “vulgar.” While the USPTO finally seems to get that “dyke” is no longer a dirty word, this case has shined a spotlight on the politics of language, the power of resources, and the paradox of a federal government that will not grant basic equal rights to lesbian and gay Americans but nonetheless insisted on protecting lesbians from themselves.

***

“I've had people pass me on the street and call me a ‘fucking dyke,'” says Soni Wolf, “and I never took it negatively. I just turned around and smiled, as if to say, ‘Yeah? Your point is?'”

Wolf, fifty-seven years old, has the longest tenure of any Dykes on Bikes member and serves as the group's volunteer secretary. Her basic transportation these days is a big black Yamaha V-Star 1100 with red pinstripes, which gets her to and from her job as the assistant to a law firm administrator.

It was in 1978, on a smaller Honda 350, that Wolf first rode in the San Francisco Pride Parade with a small but spirited contingent of about twenty-five other lesbian motorcyclists.

“We were a very rowdy, very fun loving, crazy group of women,” she recalls. “It was an absolute thrill to ride down Market Street. The roar and the noise was just so heart pounding and thrilling. I must've had a grin from ear to ear plastered on my face the entire ride.”

At one time, Wolf admits, she was “kind of ambivalent” about being called a dyke. Now, she says, “I embrace it.” Plus, Wolf says, Dykes on Bikes “just rolls off the tongue good. It's really smooth.”

***

Sometime in July of 2003, Soni Wolf learned that a woman in Wisconsin was trying to trademark “Dykes on Bikes” as the name of a clothing company. Had she succeeded, she would have been the legal owner of that name and could have charged a fee to the San Francisco group, as well as similar groups in several other cities, for the right to ride under the Dykes on Bikes name. This would never do. After all, Dykes on Bikes, officially named the San Francisco Women's Motorcycle Contingent, had been leading the city's Pride parade since 1977.

“We discussed it, but there wasn't much to discuss,” says Vick Germany, the group's president, an environmental consultant who rides a powerful black Suzuki Boulevard S-50 (which, she says, could use a little more cool chrome). Germany's first Pride parade with Dykes on Bikes was in 2000; her back seat passenger was her mother.

“We feel it is very important to keep our name available to any women's motorcycle group so they can use the phrase and not use it for personal gain,” Germany explains. “The consensus was, we had to act.”

***

Act the Dykes did.

They retained San Francisco attorney Brooke Oliver, the founder of a small intellectual property firm whose stated mission is “to use the law to protect the icons, images, and entities of social change.” On July 31, 2003 , Oliver, who has handled dozens of trademark applications, filed one with the USPTO seeking federal protection for the San Francisco Women's Motorcycle Contingent's use of the term “Dykes on Bikes.”

It described the group's not-for-profit community based activities, including “organizing, conducting, and promoting parade contingents, community festivals, events, street fairs, forums, seminars, parties and rallies to support, organize and motivate women motorcyclists everywhere to do the same, thereby fostering pride in a wide variety of sexual orientations and identities, namely lesbian, bisexual and transgender.” Included with the application was the group's official half page history that appears on the Dykes on Bikes website and refers to its “disorganized and delightful” beginnings in 1976.

“It seemed,” Oliver says, “like it would be pretty straightforward.”

“I thought it would be a slam dunk,” is how Vick Germany puts it. “A no-brainer.”

***

Clear across the country, at the Trademark Office just outside Washington, D.C., it apparently was a no-brainer—the other way around. In February of 2004, the application was refused by USPTO Examining Attorney Sharon A. Meier, under Section 2(a) of the Trademark Act, “because the proposed mark consists of or comprises matter which may disparage or bring into contempt or disrepute the lesbian, bisexual, and transgender communities.”

***

Soni Wolf was the first member of the group to get the news from attorney Oliver. “I said, ‘How can they refuse us?'” Wolf recalls. “Well, they did. It broke my heart. And then I got absolutely appalled and angry.”

“When Soni told us,” Vick Germany says, “you could have heard a pin drop in that room. We were silent for twenty, maybe thirty seconds. And then? You shoulda heard us! You wanna talk about vulgar words!”

To support its decision, the government had attached printouts from several online dictionaries designating the word “dyke” as “offensive” or “disparaging.”

Oliver recalls, “We chuckled a little and said, ‘My, they're a little out of touch. We need to educate them a bit.'”

And so began the education of the United States Patent and Trademark Office about what the word “dyke” really means to many lesbians in America.

***

As the New Queer Dictionary puts it, self-identifying terms are as fluid as a Ricky Martin hip swivel. And that is the point the Dykes on Bikes' attorney Brooke Oliver hoped to make with trademark attorney Meier in her response to the Trademark Office's refusal to register the Dykes on Bikes trademark.

Using the USPTO's own decisions, Oliver argued that the law requires the government to approve the Dykes on Bikes trademark, as long as it is not considered “disparaging” by a “substantial composite” of the lesbian, gay, bisexual, and transgender communities. In other words, Oliver asserted, if most lesbians themselves don't mind the word “dyke” or “Dykes on Bikes”—which, she argued, they do not—the government must issue the trademark.

“Dyke,” Oliver wrote, evokes pride, empowerment, self-reliance, power, and gender equality. Whereas “dyke” was once an epithet, Oliver explained to the obviously uninitiated trademark attorney, it had become a proud term of self-reference.

Calling the evolution of “dyke” a “linguistic re-appropriation and reconfiguration,” Oliver told Meier, “Many dykes in the LGBT community claim the term as a means of saying to others, ‘You used to put me down with that term, but it is what I am. I am out of the closet and proud to be a dyke. You can no longer hurt me or my family with that term.'”

Dykes on Bikes, however, lost again. Examining Attorney Meier's second refusal came on October 28, 2004. It reiterated her original disparagement rationale and added this tweak: “The fact that some of the disparaged party have embraced or appropriated the term DYKE does not diminish the offensiveness of the term.” In other words, she didn't care that lesbians do not feel insulted by “dyke” or “Dykes on Bikes;” in her view, they were.

***

Had the Trademark Office even looked at its own trademark register during the period of time it was repeatedly considering and rejecting the Dykes on Bikes application?

For one thing, in 2001, the Trademark Office had approved the trademark for Technodyke, an Internet site described as “the gathering place for the web-savvy dyke.”

Moreover, the register currently contains dozens of trademarks that could be considered just as “disparaging” toward homosexuality as “Dykes on Bikes,” including Queer Eye for the Straight Guy (reality television show), Queer as Folk (television drama), Queer Gear and Queer Sports (clothing), Queer Shop (retail items for gays and lesbians), and The Homo Depot (refrigerator magnets and other knick-knacks). Somehow, these had made it past the gatekeepers.

So had clothing lines with names including: Life Sucks… Learn to Swallow, Crippled Old Biker Bastards, Psychobitch, Biker Bitch, Evil Pussy, and Prick. Those booze filled Suck & Blow beverage containers have trademark protection, as do Cheap Slut candles, Hustler's Young Sluts porn tapes, and an outfit called Whore Church (which offers “live cabaret performances that educate the audience and promote awareness of prostitutes, homeless and alternative lifestyles”). None of these, apparently, were deemed too “vulgar” or “disparaging” to women to warrant government trademark protection.

What distinguishes Dykes on Bikes from The Homo Depot or Queer as Folk or any of these other trademarks? Had the Trademark Office suddenly developed a new degree of sensitivity? Why, in a country that does not offer lesbians equal protection in the workplace, the right to serve in the military, or access to the rights and financial benefits of marriage, was the government worried about disparaging lesbians by letting Dykes on Bikes own its name? Could it be that the Trademark Office was applying different standards to lesbians than to heterosexuals? Does it favor gay men, about whom corporate owned television networks have built successful programs, over nonprofit groups like the San Francisco Women's Motorcycle Contingent who have far fewer resources?

***

When that second refusal from the USPTO arrived, it had been fifteen months since Dykes on Bikes had applied for its trademark. Another San Francisco Pride Parade had come and gone. Not only did the women not have their trademark, but, as Vick Germany puts it, many felt the government's two rejections of their request were a “slap in the face or a kick in the stomach.” The woman in Wisconsin had by that point dropped her quest to trademark Dykes on Bikes for her clothing line, but the San Francisco Women's Motorcycle Contingent wasn't about to drop theirs. This had now become a matter of principle.

Brooke Oliver realized she would need heavier legal ammo to refute the government's contention that a Dykes on Bikes trademark would disparage lesbians. She would have to prove in a new way, that the legally crucial “substantial composite” of lesbians did not cringe at the word “dyke.”

She turned to the National Center for Lesbian Rights (NCLR), a San Francisco public interest law firm. Together, Oliver and NCLR prepared a new stack of paperwork for the Trademark Office, including hundreds of pages of extraordinary expert declarations from more than two dozen prominent scholars, linguists, activists, community leaders, teachers, writers, and cultural observers, all attesting to the fact that “dyke” is used in a nonperjorative and nondisparaging way by lesbians to refer to themselves. This new information landed at the USPTO in late April of 2005.

One declaration was from Joan Nestle, an author, teacher, and cofounder of the largest and oldest archive about lesbian lives. “My personal history with the word ‘dyke' exemplifies the transformative power of resistance,” she said. “In the late 1950s when I was first exploring a public lesbian identity, the most dehumanizing taunt suspicious heterosexuals hurled at me was ‘bull dyke.' It was filled with their conception of what a lesbian was like—an ugly aggressive animal.”

“Because I endured these years, I knew better than anyone what it meant when in the late '70s, younger women proudly reclaimed the word ‘dyke.' … They emptied the word of its bigotry and fear, replacing it with community and self-affirmation.”

Nestle referenced the many journals, newsletters, and organizational papers with the word “dyke” in their titles, as well as flyers announcing dyke dances, dyke softball games, and dyke potlucks.

“Dykes on Bikes has become the trademark of our changed position in society, from being the pathological other to an autonomous joyful community, expressing one version of the human experience,” she concluded. “I cannot imagine a more ironic twist of thinking than to judge this reclaimed badge of honor as insulting to the very community who has created its power.”

Prominent linguist Ronald Butters, advisory board member of the New Oxford American Dictionary and editor of the entry for “dyke,” used his declaration to compare the Dictionary 's entries under “cunt,” “nigger,” and “tree-hugger,”(one can only imagine how Trademark Attorney Meier, who found “dyke” unacceptable, reacted to these words when they came across her desk!) with the entry for “dyke.” The first three words, he explained, are listed as “derogatory,” whereas “dyke,” “as applied to lesbians, is neither derogatory nor disparaging.”

And just in case the Trademark Office was not up to date on lesbian pop culture, one declaration attested to the multitudes of books, magazines, documentaries, and poetry by and for lesbians, including titles such as Chasing the American Dyke Dream: Homestretch and Our Mom is a Dyke. Others enumerated the use of the word “dyke” in contexts such as lesbian gatherings called dyke dinners, lesbian dances called dyke balls, and the phrase “lesbian drama,” a favorite term used by lesbians to describe their complicated lives and loves. The declarations also cited the use of “dyke” by LGBT businesses and nonprofits such as Dyke TV, a cable television program by, for, and about lesbians (which has also applied for a trademark and, thus far, has been turned down), and the numerous annual displays of lesbian pride across the nation called dyke marches.

The sheer volume of facts and passion about the word “dyke” was stunning. Germany recalls feeling “so strong after reading those declarations. I wish every dyke could read them.”

***

But, yet again, Trademark Attorney Meier wasn't swayed. Less than one month later, she denied the group's request for the third time. Somehow, despite the hundreds of pages of declarations and other evidence, Meier had found “no new facts or reasons” that she deemed “significant and compelling.” And, for the first time, she used the words “scandalous” and “vulgar” to describe the term “dyke.”

To support the newest version of her objection to the application—that “dyke” is “vulgar”—Meier had attached pages from the personal website of an anonymous individual, bearing the heading, “Spanish Slang, Expressions, and Idioms – Vulgar Words and Expressions.” Both “dyke” and “lesbian” were listed under “vulgar nouns.” (Moreover, the website cited by Meier includes links to such pages as “Stephen's Rules of Alcoholic Excursions: Larks, Crawl and Benders” and the homepage of the website owner's two cats, Isaac and Dorothy.)

“What a Spanish dictionary has to do with dykes, I have no idea,” says Soni Wolf.

By this time, Wolf, Vick Germany, and some fellow Dykes on Bikes were seriously considering a loud and visible protest ride on the Patent and Trademark Office just outside Washington, D.C., because, Wolf says, “we weren't going to let the federal government tell us who the fuck we are.”

Shannon Minter, NCLR's Legal Director, calls it “truly one of the most shocking legal decisions I've ever seen.” Minter says Trademark Attorney Meier “obviously had an issue” with the word “dyke.”

Brooke Oliver recalls having a phone conversation with Meier about the hundreds of new pages of declarations, during which, Oliver says, Meier “couldn't even say the word ‘dyke.' I said, ‘go ahead and say it! Dyke! There are thousands of us!'”

***

Despite what had transpired, neither the Dykes on Bikes nor Brooke Oliver say they ever considered abandoning their fight to attain their trademark. This had become about so much more than stopping somebody else from owning the name the San Francisco women had sunk years into building into a symbol of pride. Still, the legal work was putting a strain on Oliver's tiny firm. She needed more help to continue fighting what, by all accounts, was going to be a long battle that could have gone to federal court and back again to the Trademark Office before it was over.

In late spring of 2005, the intellectual property law firm Townsend and Townsend and Crew, a major player in the world of trademarks, with more than one hundred attorneys and offices throughout the American West, joined the legal team pro bono.

The lawyers now wanted to submit two additional pieces of evidence that had not been part of their submissions thus far: first, they wanted to submit to the Trademark Office that list of the government's own “queer,” “homo,” and “whore” trademarks, to challenge the assertion that “Dykes on Bikes” was too “vulgar” to receive trademark protection; and second, they wanted the examining attorney to view videotaped footage they had compiled showing the cheering throngs that greet the Dykes on Bikes contingent in the San Francisco Pride Parades. They felt certain the videotape would demonstrate “the liberating message conveyed by the proposed mark and the reactions to the mark among the affected LGBT community.” In other words, the tape would show that lesbians, and tens of thousands of others, adored the Dykes on Bikes.

Trademark Attorney Meier, however, had told the legal team she was not willing to consider any further evidence in this case. As far as she was concerned, it was over. So, the lawyers went to the Trademark Trial and Appeal Board, known in the biz as the “TTAB,” to force Meier to reconsider yet again. In November of 2005, the trial board did order Meier to do so, but, given their experience thus far, neither the Dykes nor their lawyers were optimistic.

That's why it was such a big surprise when, one month later, the Dykes on Bikes received an early Christmas present: word came from Trademark Attorney Meier that, “after considering the applicant's arguments and additional evidence, I have approved the application for publication.” That was all she wrote, but it was all the Dykes on Bikes needed to hear.

“I was overwhelmed, thrilled, ecstatic,” Soni Wolf says. “This time, it was tears of happiness. We finally did it!”

Oliver says she “would like to think the decision was on the merits” but suspects that it was only when her clients, “a largely working class, volunteer, unfunded group of women” brought in a large, well financed law firm whose name was well known to the government, that the Trademark Office really did evaluate the application on its merits.

Townsend attorney Leigh Kirmsse agrees. “The bottom line is that when Townsend and Townsend and Crew got involved, the examiner and the Trademark Office knew they were in for a fight they could not win and that we had the resources to wage. It is one thing to stonewall a small firm like Brooke's, and quite another to deal with an eight-hundred-pound gorilla” like Townsend.

***

Lynne Beresford is the United States Commissioner for Trademarks. In a recent telephone interview, she defended Examining Attorney Sharon Meier's actions throughout this case, including her use of online dictionary definitions to support her refusals of the Dykes on Bikes' application. Beresford did, however, admit that Meier's resort to those Spanish language slang terms from a personal website was “weak” supporting evidence. Still, she was certain that at no time did the examining attorney's personal feelings about lesbians influence her actions.

She maintains—and Brooke Oliver does not dispute—that many trademark applicants receive an initial request from the Trademark Office for more information and further documentation. Incredibly, however, Beresford claimed that Meier may not have actually seen the enormous number of documents and declarations submitted in April 2005 before she denied the Dykes on Bikes' request for a third time.

“She could perhaps have only gotten part of the submission,” Beresford said. “I really don't know what happened. I'm ever hopeful the examining attorney read all the materials. I'm just not sure that she had them all, based on the way things work here.” When pressed for details on how “things work” at the Trademark Office, she declined to elaborate.

As to why Meier ultimately changed her mind and approved the trademark, Beresford only said, “My staff told me, when they got all these pages of evidence, they looked at all of them and said, the applicant has met its burden.”

When asked about the seeming inconsistency of her office's approval of trademarks with words like “queer,” “homo,” and “bitch,” she would say only that each application is evaluated by one of three hundred fifty Examining Attorneys, and “they're expected to look at what's out there to see what the perception is of the term.”

***

In early December of 2005, the USPTO officially reversed its position that “Dykes on Bikes” is disparaging and approved the trademark application for publication. This meant after a brief period for public comment, the trademark would proceed to registration and the name would be protected.

Not only would this be a happy ending to the Dykes on Bikes' long struggle, it would also breathe new life into pending trademark applications for Dyke TV, as well as a Dykes in the City line of clothing, a lesbian magazine calling itself Velvetpark Dyke Culture in Bloom, and Dyke Dolls, described as the world's first lesbian action figures.

However, as of this writing, the Dykes on Bikes are facing a new roadblock: on February 15th of this year, just days before the end of the public comment period, a Mr. Michael J. McDermott of Dublin, California, describing himself as “a Male Citizen of the United States,” filed a largely incoherent notice of opposition to the Dykes on Bikes' application. His objection, at its core, seems to be that granting a trademark to Dykes on Bikes would be tantamount to government sanctioned feminist hatred of men.

Brooke Oliver calls McDermott's opposition statement a “hate diatribe aimed at the dyke community at large” that has little legal relevance to the Dykes on Bikes trademark application. Her firm, along with the Townsend firm and NCLR, has filed a motion to dismiss. Still, Oliver knows, the wheels of justice grind slowly, so even the best case scenario does not guarantee that the San Francisco Women's Motorcycle Club will have their trademark by the time the Pride parade rolls around on June 26.

But, she says, her clients are in this fight for the long haul. The Dykes on Bikes “have been fighting bigotry for thirty years. Who are we to stop now?”

Barbara Raab is a writer and non-practicing lawyer in New York City , with a particular interest in the intersection between the law and popular culture. A longtime leader in the National Lesbian and Gay Journalists Association, she currently serves as chair of the organization's Educators Task Force, working with journalism educators nationwide to address LGBT issues in the journalism curriculum.