By XaXa McQueen
Indigenous People’s Day is a day to remind the world to respect and honor various cultures. Most importantly, it serves as a lesson to observe what happens when other cultures are exploited, impeded and trespassed upon.
One of the world’s oldest cultures – newly re-identified and emerging- is the non-binary. Now colloquially referred to as ‘Enby’. Enby has recently and fastly become a term that gender non-conforming and non-binary folks have embraced, chosen and adopted to describe their category of being. Enby people have long labored to magnify their visibility across all social, political and economic platforms- making sure that their faces are seen and voices heard. Sadly, a company called WildFlower is trying to usurp and commodify that representation to capitalize on the Enby term in the sex tech space.
Wildflower served queer/trans black owned business called shop enby a cease and desist letter asking them to stop using the term “Enby” in their marketing. For a small business like shop enby with limited resources, this legal assault could put them out of business.
I reached out to Amy, one of the owners of Wildflower, and they insisted that “people for some reason think we are saying [we] own the word Enby, when in fact [we] just have trademark rights to it as the name of a sex toy brand.” This is false.
Wildflower applied to trademark the term “Enby” for their toy in January of 2019 and was denied on April 11, 2019. Wildflower then appealed the denial on May 28, 2019 and were ultimately sent a Final Refusal on June 18, 2019.
This means that when Wildflower sent a cease and desist to a queer/trans black owned business, shop enby, they had NO legal ownership of any trademark relating to the term ‘Enby’. This is underscored by the fact that they re-applied for the same trademark just days before having shop enby served. This also means that Amy lied directly to me when they claimed they “[had] trademark rights”.
Well, as the saying goes, the truth always comes out- and it continues to do so! In recent weeks, the non-binary, GNC and trans community have come together in defense of shop enby in a display of strength and solidarity.
Being new to the sex tech marketing space, the owners of shop enby, Maya and Jay, say that they have felt so welcomed and protected by the amount of support they’ve experienced. Maya notes that “black femmes have really stepped up”; folks like Dirty Lola and Ev’Yan Whitney. They were also surprised at other unexpected sources of support; starting with Chelsea Downs, Co-Counder of NY Toy Collective. Jay says that Chelsea was the first one to reach out to inquire of ways they could help. Soon, other noted sex tech companies have followed suit. Industry leaders bVibe and Unbound have publicly denounced and disavowed Wildflower and are working to distance themselves by pulling their product from Wildflower distribution.
I had the chance to speak more in depth with the shop enby founders and they had this to say:
“As non-binary/Trans folx often shopping for sex toys and gender affirming products can trigger dysphoria and embarrassment. We wanted to create a more comfortable shopping experience; one that could openly and without shame discuss and sell much needed products around the pleasure, post gender confirmation surgery care and wellness of queer and trans bodies. Logistically speaking we started shop enby by scraping together what little savings we had, [which was] about $2500 and a prayer. We see ourselves continuing to grow and flourish in this space. As we grow we will expand our selection of gender affirming products, work with community to host workshops and collaborate with other sex toy brands. We will continue to listen to our community and let them tell us what they need.”
“As non-binary/Trans folx often shopping for sex toys and gender affirming products can trigger dysphoria and embarrassment. We wanted to create a more comfortable shopping experience; one that could openly and without shame discuss and sell much needed products around the pleasure, post gender confirmation surgery care and wellness of queer and trans bodies.”shop enby
The biggest and most important fact of the matter is, the term Enby describes a group of people; which behooves the U.S. Patent and Trademark Office to classify it as a ‘descriptive mark’ that CAN NOT BE OWNED by anyone. This has been conveyed to WFS in the Final Decision issued to them from the USPTO on Public Document Record Application No. 88282201. The attorney officially notifies them:
“In the first Office action, evidence was provided to show that the term ENBY is used to refer to a person who does not identify their gender specifically as a male or a female. Applicant argues that the mark does not specifically identify the intended user of the goods. The examining attorney respectfully disagrees.
The applicant’s goods are sex toys. When the mark is applied to the goods, the consumer is immediately informed that the sex toys are specifically for use by an ENBY, or person who does not identify their gender specifically as a male or a female.
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. For the foregoing reasons, this refusal is maintained and made FINAL.”
Even before shop enby entered the picture this decision delivered a critical blow to Wildflower and a crucial win to the Enby community at large. This is a chance to define a standard and enforce it indiscriminately instead of once again allowing those of a heteronormative perspective to force a community to conform and submit. The attorney that made the final decision has done exactly that. They, shop enby and the immense community backing, have shown the world that NOBODY OWNS ENBY and it is for everyone beyond the binary!
Unfortunately, Wildflower is still currently pursuing this. It seems as if, since they know their case doesn’t hold water, they are doing their best to bury Shop Enby in legal fees to run them out of business. Thankfully, Shop Enby has reached their Legal Defense Fund goal of $25,000 but there is still much to be done; and if Wildflower persists, they may need more funding.
We see ourselves continuing to grow and flourish in this space. As we grow we will expand our selection of gender affirming products, work with community to host workshops and collaborate with other sex toy brands. We will continue to listen to our community and let them tell us what they need.shop enby
Maya and Jay say they have felt extremely held and cared for by their community and want Enbies everywhere to know that “the shop is for them and people like us deserve space in the sex industry.” Jay adds, “it’s amazing what’s possible when the community comes together”.
I couldn’t agree more.
About The Author
XaXa McQueen is a writer and contributing editor at Salty. She is a model and advocate of equal rights for trans and non-binary individuals. She also devotes her time to the Persist 4 Peace Initiative by focusing on her latest project, Connect + Commune.