Justices say law on offensive trademarks is unconstitutional

Posted June 20, 2017

In that case, the Asian-American rock band "The Slants" were denied protection under a provision of the 1946 Lanham Trademark Act that prohibits trademarks that may "disparage....or bring into contemp [t] or disrepute" any persons "living or dead".

Band leader Simon Tam said they were "humbled and thrilled" by the ruling. "It could be our slant on life, of what it's like to be Asian-Americans, our perspective". The trademark office argued that the word "slant" falls under the immoral, disparaging or scandalous clause, preventing The Slants from trademarking their name.

The ruling was good news for the Washington Redskins and others embroiled in a legal fight over their name.

The court, he wrote, is cautious in extending its government-speech precedents, "for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints".

The case is Lee v. Tam, case number 15-1293, in the Supreme Court of the United States.

Redskins attorney Lisa Blatt said the court's decision effectively resolves the Redskins' longstanding dispute with the government.

"This journey has always been much bigger than our band: it's been about the rights of all marginalized communities to determine what's best for ourselves", according to the band's statement. The band challenged the rejection as a violation of free speech rights under the U.S. Constitution's First Amendment, winning at the appeals court level before the government appealed to the high court.

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The USPTO had denied the Slants' trademark because it deemed the term disparaging to the Asian American community, ignoring that the members of the band are themselves Asian Americans.

[The idea that the government may restrict] speech expressing ideas that offend ... strikes at the heart of the First Amendment. Six of the team's registrations were cancelled after the Trademark Trial and Appeals Board found the team's name offensive to American Indians.

The move is expected also to work in favor of the Washington Redskins, the football team whose controversial name has been attacked as racist by Native American groups and whose trademarks were cancelled as a result.

Critics of the law said the trademark office has been wildly inconsistent over the years in deciding what terms are too offensive to warrant trademark protection.

"It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks", Simpson said to the Washington Post.

It will, however, nearly certainly lead to a reversal of the trademark board's ruling, saving the team's six trademark protections it had canceled.