Sound & Vision: Thunderpussy Takes On the Supreme Court

Thunderpussy. That's the Seattle-based band who's awaiting on a Supreme Court ruling to find out if they can trademark their name. Arguments were heard April 15th on the case. The high court looks like it will decide the band's fate in June. Joining me now to talk about this fight is the three members of Thunderpussy: guitarist Whitney Petty, singer Molly Sides, and bassist Leah Julius. And they all applied to get the name Thunderpussy trademarked four years ago.

KEXP: Why trademark your name?

Leah Julius: Starting a band is obviously about art and music, but it's also a small business. Early on when we knew we wanted to do this as our jobs and make it a business, we knew we needed to protect ourselves, so our first attorney Ben Kerr helped us file the paperwork for our LLC and then told us we should apply for the trademark and that's where we went. 

Molly Sides: When we started off we were a band, but at the beginning we always said "we're a band, we're a brand, we're a business." And within that you want to make sure that you have protection, you have this extra layer around you. So when you move forward, you have the right right steps in place to continue your growth. 

Whitney Petty: It's a basic copyright infringement issue. And also, you know, we do have our trademark in the state of Washington. And there is a common law which basically says that if you have been operating in the public domain under something, you are afforded basic protections, but those don't extend past your region. So if someone is "Thunderpussy" overseas, then they're Thunderpussy overseas and they can exploit that brand.

Thunderpussy is not only our name, but it's very much us.

So, why the name "Thunderpussy"?

Molly: Because it's us. It's very much us. You know it started a bit tongue-in-cheek and fun and playful, which is very true to all of our personalities. But with any sort of given name you grow into it and there's a lot of strength and power and persistence. I think not only with our music but within our individual personalities and with each individual we've created this group that's really strong and it's quite a force and Thunderpussy is not only our name but it's very much us. 

So when it comes the Supreme Court case, the issue at first was there was a law that said the Patent Trademark Office would ban trademarks that are immoral, scandalous, or disparage individuals or groups. Yet, two years ago the Supreme Court struck down the clause relating to disparaging content and that allowed the Washington Redskins to keep their name. It also allowed the Portland-based band The Slants to trademark their name. Can you talk about who The Slants are and how you were at first kind-of a part of that case but now you're totally separate?

Leah: The Slants are an awesome rock band from Portland. And when we were originally denied our trademark, it was on the three grounds that you just listed: disparaging, scandalous, and immoral. And Simon Tam and The Slants, they were obviously denied on it being disparaging towards Asians. 

And they are and all-Asian band. 

Leah: And they are an all-Asian-American band.  And their point was to reclaim the power behind that derogatory term. And so we originally were told that our trademark was dependent on their case as well. So we were following his case and were in touch with The Slants. And then when that decision came down we were like, "oh sweet, we're going to get our trademark."

Molly: We were all so excited. 

Leah: I think we even called into KEXP and talked about it and then pretty quickly after that we were told, 'No, in fact, you were denied." Also on the grounds that it's scandalous and immoral, and that is currently going through the courts in this case called "Brunetti." 

So, you're waiting on your case to see if you can file a trademark for your name. Also, Pussy Riot is also awaiting that and then a company that did arguments is spelled F U C T which, if we sound that out, sounds like a swear word. Are there any other bands or companies that are tied up in this case or bands or companies that in the past have been approved for trademark that you're kind of surprised, "well, how did they get it and we didn't?"

Molly: This is really fascinating to me actually because RBD (Supreme Court Justice Ruth Bader Ginsburg) had asked and posed the question, how does a trademark office define what is scandalous, shocking, and offensive? And I would just like to read a few trademarks that were granted. You have Pussy Deluxe, Smokin Pussy, Evil Pussy, Pussies, Pussy Pop, Wild Pussy. So my question is the same. How do they decide on what is offensive and scandalous?

Whitney: And you know what it is? It's because it's the combination of "thunder" and "pussy" in Urban Dictionary. 

Molly: They cite two different references to different definitions and one was cited from the Urban Dictionary. 

Whitney: Which if you don't know is an online... 

Leah: ...Crowdsourced... 

Whitney: ...Wikipedia-style...

Molly: It's a gag dictionary. 

Leah: Anyone can contribute to it. The definitions under Thunderpussy are not a rock band from Seattle. It's other things. And that was a big part of the [April 13th] discussion in the Supreme Court was the inconsistency of people who have applied and what they've let through and that was a question that a lot of the more liberal judges kept posing is, what kind of standard are you going to use. So in that sense, we're a little bit lucky that it's the courts and they can't really legislate from the bench. So either they're going to strike it down and hopefully we'll get our trademark or they'll keep it the same. But they can't really like put in place any laws that will clarify the inconsistencies of how they did it in the past, which in my opinion makes me hope that they're just going to strike it down because the inconsistencies are just kind of absurd. 

Whitney: To be clear, if Brunetti passes, we don't immediately get our trademark. We learned that in The Slants case. The courts will be setting a precedent. 

Molly: This is a nice, long waiting game. 

Whitney: You know, Brunetti, either way — if they say that Brunetti does or does not get the trademark, it's not like an all-sweeping thing. But it does have some sweeping effects on the chances of us getting our trademark if they are denied — because we were denied on the exact same grounds — are going to dwindle. But we will, of course, appeal again and at that point, we might get to a place where they're looking at our specific case. You know, we're not sort-of riding the coattails of someone. But again, we're being lumped together for a very good reason. So, hopefully. 

So, again the clothing company or brand that's spelled F U C T delivered arguments at the U.S. Supreme Court on April 13th. And I want to get your reaction to some of the things that were said in court. So Justice Samuel Alito said, "The government is not saying you can't use this phrase, this word, we just won't register it." So saying you can have this name as your brand or as your band name but we will not register it as part of the federal government. And then Malcolm Stewart, the attorney representing the Patent Trademark Office, says, "The ban on federal registration of scandalous trademarks is not a restriction on speech but a valid condition on participation in a federal program." So do you agree with those statements or do you think this is a restriction on your free speech?

Whitney: I think it is and I think I say go one step further, trademark it and then let the marketplace decide. 

So kind of going off of that, Chief Justice Roberts said when we're talking about specifically this brand FUCT, and he's picturing mannequins in a mall wearing shirts that say "FUCT" across them, he said, "It's going to be on people walking down through the mall and for parents who are trying to learn their children not to use those kinds of words, they're going to look at that and say, 'well, look at that', and then they're going to see the little trademark thing and say 'well, it's a registered trademark.'" And then he goes, "Well, actually they probably won't say that." And the court laughed. And he says, "But you understand my point is that the government's registration of it will facilitate its use in commerce not necessarily speech but as a commercial product." And then he goes on to say, "The whole point is that the federal registration increases the exposure and the theory is you're going to have more commercial opportunities in markets if you use trademark," again if you're under the federal registration system. What are your thoughts on that? Basically he's saying if you get this trademarked and approved as a trademark, the government is supporting you and then you get more commercial exposure. 

Whitney: No, you don't. He [Erik Brunetti, the founder of FUCT] was denied for the first time in 2001. He's been marketing it ever since. 

Molly: And he started in 1990. 

Whitney: And it's already global. And it's already on mannequins. 

Molly: And people are going to be walking around with that merch anyway. 

Whitney: We don't think that the federal government's going to give us our trademark and all of the sudden we are going to get rich, cash in on something comercially. No, we are going to be able to stop copycats. 

Molly: And we'll have that sort of protection around our name, around our band, around our sound, our image, our vision. It's just that added layer of armor. 

Leah: I think it's important to know that someone can walk in the mall with a shirt that says that whether it's trademarked or not. So trying to use that argument, that's the freedom of speech component. Does this case specifically deal with freedom of speech? Not really. But when it comes to that, it does because he may not be protected if someone else is walking around in that shirt and he didn't make it or if someone else is walking in a Thunderpussy shirt they made that we didn't make, but at the end of the day they're never going to be able to regulate that because we live in the United States and that's a good thing. And so to keep using that as an argument of saying you know if we trademark it it'll be everywhere is just ridiculous. It's just not true. 

Molly: And also you had mentioned earlier that the federal government shouldn't have the right to regulate what some people find offensive in a free marketplace in an open marketplace. 

Whitney: They're not regulating it, they're telling you. Simon Tam (of The Slants) said he had to sit in a courtroom and listen to a bunch of non-Asian people tell him what Asian people find offensive. 

Molly: We are women who actually have female anatomy. And I would just like to add to that, Thunderpussy is not here to insult or isolate people. In fact, it's the opposite. We're here to spark conversation and collaboration and community within communities. This is why we love to tour, we love to meet new people, and the most exciting moments are those in which we get to meet people and children and families who are coming to our shows, to our events together and then we get to meet them and hear their stories on how they heard about us and what they're going to do next and how we've sparked inspiration for youth, for moms for dads, for a broad range of people and identities. It's just fascinating that we've kind of been plugged into this negative and we've been pushed into this little folder of derogative, negative kind of condescending manners and language. And yet here we are as artists using a language that we know how with our bodies and a way to activate people in a positive way. 

It's not okay that a slang word for the thing that every human being came out of is considered immoral.

Whitney: It's not okay that a slang word for the thing that every human being came out of is considered immoral. That's not OK and it was really interesting when we were researching all the times that "pussy" has been trademarked, before like 1986 everything with pussy got trademarked. 

Leah: That's what I was going to say, it feels like there's been like this curve of it was fine: Octopussy, Josie and The Pussycats... 

Whitney: All the pussy things that we talked about, most of them are before a certain time. If you plotted it on a chart, you would see how pussy came. Pussy got dragged through the mud at some point in the '90s, I think. 

Leah: I think with the parental advisory, there was that push in the '90s of "let's keep these certain music and certain words out of the hands of people." And you remember when Marilyn Manson got blamed for Columbine? It was just that kind of ridiculous time where people decided that music and words were causing the unrest in the world, instead of a way to express people's unrest in the world. 

Whitney: The name started off, it wasn't serious, the band wasn't even serious. We were all in other bands at the time. It immediately became apparent that there was something special about our band, our chemistry together, and the name stuck because it immediately polarizes people. You have a reaction to it. I think that is what rock and roll and what punk music should be about. So the name immediately embodies that right away. I think that's great. What's interesting is that also when people are turned off by it, especially you realize the reason is because they think pussy is derogatory and because pussy has been associated with promiscuous behavior. 

Leah: Scandalous behavior. 

Whitney: Immoral behavior. At the heart of it, it's womanizing. And that's wrong inherently. And I think what is cool about the band and the conversation that I think is important is when people are on the fence because of all these issues that we just outlined, and some of them are the same issues that the Supreme Court justices are worried about with Brunetti, they come see the band and they realize that it's not only harmless but empowering and they flip 180 degrees by watching the band and seeing strong empowered women, smart women. We know what we're doing,  we have a purpose. We're not floundering up there. We're talented. We play our instruments, we write our own songs. We're business owners and we're moving forward with that. And it's a juxtaposition with what often people think the band is going to be just by hearing the name. And I think that that conversation is fantastic and if you see us for the very first time you're probably going to walk out having that conversation with the person next to you. And I think that's really cool. 

So based on April 13th arguments, how do you think the court will rule and then what comes next if let's say this case doesn't win?

Molly: I think that no matter what we will continue, we are Thunderpussy, we will continue to be Thunderpussy.