Black trans sex toy company Shop Enby is raising money for a legal defence after being threatened with a lawsuit by sexual wellness boutique Wild Flower over using the word “enby”.
Enby is an abbreviation for non-binary, widely used instead of “NB” because NB is an abbreviation already in use for non-Black (as in, non-Black people of colour).
On 16 October, Shop Enby was sent a legal letter by lawyers acting for Wild Flower with the subject line: “Your unlawful use of Wild Flower’s intellectual property.”
The legal letter says that Wild Flower “has owned the ‘Enby’ mark in relation to sex toys since at least as early as June 2019”.
“As such, we must request that you immediately cease and desist… using the Enby mark,” says the letter, which Shop Enby posted to its Instagram on 24 November.
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Shop Enby, which is a new Black-owned company of three trans non-binary people, wrote on its GoFundMe page: “We fundamentally believe that no one can own the term ‘enby’.
“This would be as if a sex toy company was trying to claim ownership of the word ‘gay’, ‘lesbian’, ‘transgender’, ‘bisexual’ or ‘queer’. These are terms that belong to all of us in the community.”
Shop Enby declined to comment when contacted by PinkNews but pointed out that Wild Flower has twice had trademark applications for “Enby” rejected by the the US Patents and Trademarks Office (USPTO).
In a June 2019 rejection notice, the USPTO said that Wild Flower’s application to trademark “Enby” had been “carefully considered, but ultimately found unpersuasive”.
“A mark that describes an intended user or group of users of a product or service is merely descriptive […] several product reviews and internet articles, including interviews specifically of the product owners and designers, show that the goods are specifically designed to be used by persons who are ENBY, or non-binary […] Thus, the mark describes the intended user of applicant’s goods, and must be refused,” the USPTO said.
Wild Flower is owned by Amy Boyajian, who is non-binary, and former Google employee Nick Boyajian.
PinkNews was sent a statement by Wild Flower’s lawyer, Kristin Grant of Grant Attorneys at Law.
“In the United States (and in many other jurisdictions) trademark rights exist based on use alone and registration is not required,” Grant said. “Registration does, of course, provide additional protections and this is why it is encouraged.
“An unregistered trademark (also known as a common law trademark) is protectable and enforceable under Section 43 of the Lanham Act. Our client has sold sex toys extensively throughout the United States and internationally under the ENBY mark and as such has acquired common law rights to the ENBY mark in relation to the sale of sex toys.
“Any use by a third-party of the term ENBY as a trademark (brand) in relation to the sale of sex toys, within the territories that our client has acquired trademark rights, is an infringing use.”
Wild Flower added that they have “never sought to shut down another business, prevent them from operating, or anything of the sort” and have “never tried to own the term ‘enby’ entirely”.
“We are an LGBTQ-owned business that has always invested in the movement toward inclusion, positivity, and growth,” Wild Flower said.
Donors to Shop Enby crowdfunder question who can own ‘enby’
Shop Enby has surpassed its stretch crowdfunding target, raising more than $25,000 so far.
In an update posted on 23 November, the organisers thanked those who had donated and said they would be raising the funding goals because “everyone is telling us that this lawsuit is going to cost more money”.
Unbound Babes, another sex toy company, was one of those to make a big donation, sending $1,500 to Shop Enby’s fundraiser with the message: “We stand with you!”
Several of those who donated left messages of support referring to Wild Flower and arguing that the word enby can’t be owned.
“No one owns the words we queer folx use to identify and celebrate ourselves within our own communities,” one person commented with their $10 donation.
“F**k Wildflower Sex and their trash capitalistic business model. Support, protect and uplift queer people of colour and their businesses! Shop at Enby, not Wild Flower.”