Tim Lince

Online communities of so-called ‘alt right’ internet users have developed code words to hide bigoted slurs on social media in a bid to avoid perceived censorship. The code uses high-profile brand names, including Google, Yahoo and Skype, to substitute for offensive words to describe ethnic groups including African Americans, Mexicans and Jews. World Trademark Review has spoken to experts about what the affected brand owners can do  – but in terms of legal remedies, the options appear to be limited.

The coding system was adopted in response to Google’s new Jigsaw programme, which aims to combat online abuse and harassment through the use of an automated artificial intelligence program. It was also created as a way for followers of the so-called ‘alt-right’ ideology – a right-wing movement often associated with white nationalist and anti-Semitic views – to avoid being banned or suspended on social networks, most commonly on Twitter, for using racist terms. The coding system originates from an alt-right message board on forum platform 4chan, with one user responding to Google’s AI program by saying “if Google wants to block offensive words, then [we] are going to give them the most offensive word to block: GOOGLE”. Another user, who created a social media image to promote this tactic, wrote: “Google will not include a page on its search results if it contains ‘offensive’ words – so use the word Google on social media when referring to one or many [offensive term for African Americans] to damage the Google brand, and don’t forget to use the Google logo on appropriate images.”

So-called ‘Operation Google’ soon expanded and led to the creation of a full set of code words as a substitute for various offensive terms. This includes the aforementioned ‘Googles’ as a derogatory word for African Americans, ‘Skypes’ as a derogatory word for Jewish people, ‘Bings’ as a derogatory word for Asian Americans, ‘Yahoos’ as a derogatory word for Mexicans and ‘Skittles’ as a derogatory word for Muslims (the latter apparently originating from a Donald Trump Jr tweet comparing a bowl of Skittles to Syrian refugees). The full list can be viewed here (warning: contains offensive terms).

A search on Twitter reveals countless uses of the terms in such contexts. For example, one tweet from an account called ‘AltRightInfo’, which has over 13,000 followers, used the trademarked terms as lower-case nouns: “If a genie granted me a wish, I'd ban googles, yahoos, skypes and skittles.” In fact, a Twitter search for ‘Skypes’, ‘Skittles’ or ‘Yahoos’ show numerous tweets in the last 24 hours using the terms in relation to ethnic groups. Furthermore, discussion about the code system is on the rise too (such as podcast personality Alex Goldman tweeting about the code to his 35,000 followers, garnering 15,000 retweets), further promoting the association between the brand names and the offensive terms.

This could, of course, be a reputationally damaging situation for all of the associated brands. But as well-known trademarked terms, can their in-house IP counsel do anything to halt this use? Probably not, says Ed Timberlake, an attorney-at-law at Forrest Firm. “Since these code words, to my knowledge, are being used outside the context of commercial activity, it would appear that such utterances fall squarely within the realm of free speech,” he explains. “That words registered for use as trademarks in certain commercial contexts are also (one might reluctantly say innovatively) being used distastefully as code words for racist sentiments, doesn't change the fact that people expressing such sentiments are entirely free to do so regardless of their significance in a commercial context. If the code words were also being used in commerce in a trademark manner, to indicate the source of whatever, it might be a different matter and a cease-and-desist letter might make sense as one option to consider.”

While legal remedies may be limited, that’s not to say the brands should do nothing. On the contrary, says Dykema's trademark practice lead Eric T. Fingerhut, it is important for the brands to do something regarding the misuse of their trademarks. “No-one is not going to buy Skittles because some alt-right group on Twitter is referring to them as Muslims,” he notes. “However, I do think that the consumers of Skittles would have a lot more respect for the brand if they address and call out this kind of misuse.”

One approach, according to Timberlake, would be similar to Wrigley’s recent response to Trump Jr’s Skittles tweet. “I sympathize with any company experiencing such a situation, but I'm not sure it's one of those cases where tough legal action is better,” he states. “My sense is that the better approach might be to craft a simple public statement, making it clear that your words, your trademarks and your company stand for something better. If you were completely bold, one might even defend in such a statement the right of others to use words distastefully, while making it clear that you're better than that.” He warned, though, that brands should be wary in their response because “any efforts to silence such speech would likely just shower more attention on the matter”.

Another option, says Fingerhut, is getting the terms added to the ‘offensive’ words list that the policy teams at Twitter and other social platforms use when policing hate speech. “If I were in-house at Google, I would be on the phone in a second with all the other counsel at these affected companies,” he explains. “I would then send a strongly-worded joint letter to social media platforms to make them fully aware of the situation. Let’s remember that the reason this alt-right group is doing this in the first place is because use of the actual offensive words would be in obvious violation of their policies. So if a company name becomes synonymous with those same racist terms, then Twitter and other social networks may take down the posts for hate speech. If that happens, then the content could be reported and taken down. That's not necessarily legal, but it is clearly against the de facto Twitter policy and, in this day and age, that is often the law that we follow."

The thought process should be similar to that of how brands approach the threat of genericide, Fingerhut concludes: “Generic misuse of a trademark is often not legally actionable, but a brand owner will pursue it because it is the ultimate form of trademark dilution and you therefore want it to stop. The same rule applies when your trademark becomes synonymous, in an underground way, with hate speech. Therefore, you want to call it out because it helps to prevent it, even if it isn't legally actionable. Ultimately, in this era of social media transparency, if a company knows about this type of misuse, then it has a duty to be a responsible brand and shine a light on it."

It is an unquestionably uncomfortable situation for all the brands involved, and one that requires walking a fine line between elements including reputation management, trademark rights, hate speech and free expression. But while legal options are limited, tenacious trademark counsel do have brand reputation and policy approaches they can pursue. 

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