Published: Tue, June 20, 2017
USA | By Angel Wallace

Justices say government can't refuse disparaging trademarks

Justices say government can't refuse disparaging trademarks

"It offends a bedrock First Amendment principle", Justice Samuel Alito said of the Lanham Act clause, writing for the mostly unanimous court.

The Slants - new drummer Yuya Matsuda, vocalist Ken Shima, guitarist Joe X. Jiang, and Tam (whose stage name is Simon Young) - are an Asian-American dance-rock band that applied for a trademark in 2010. And while the team's petition to join the Slants' case was denied past year, the ruling today sets a precedent for the team to get its trademarks back. That ruling was put on hold - and the Redskins held on to their trademarks - while the case that was decided by the Supreme Court today was argued.

Today's decision also has the potential of alleviating a great amount of confusion as the U.S. Patent and Trademark Office's response to offensive marks hasn't been particularly consistent over the years.

"Big Pecker Brand" T-shirts, a cartoon strip called "Twatty Girl", and the lesbian biker group "Dykes on Bikes" - these lurid names are just some that are now eligible for US trademarks after a Monday ruling by the Supreme Court found that potentially offensive trademarks are protected by the First Amendment's free speech clause.

"The Supreme Court has held that Congress can not keep disparaging trademarks out of the federal registration program", they said, "but the Court did nothing to cast doubt on the prior judicial findings that the Washington NFL team's name and trademarks disparage Native Americans". "The establishment of an Asian American band was a political act in of itself, even though we never considered ourselves as a political group", band leader Simon Tam said in a statement. "They are using the market to express views". The Patent and Trademark Office (PTO) denied the band's request for a trademark, finding their name could offend Asians.

The law prohibits registering a trademark that may "disparage" any "persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute".

Trademark office spokesman Paul Fucito said officials are reviewing the court's ruling and plan to issue further guidance on how they will review trademark applications going forward. He says he picked his band's moniker in an effort to reclaim a stereotype.

The government had also argued that disparaging trademarks are disruptive to commerce, but Breyer counters that the current law is so over-generous in its phrasing that it would require USPTO to reject trademarks like "Down with racists", "Down with sexists", "Down with homophobes". "If affixing the commercial label permits the suppression of any speech that may lead to political or social 'volatility, ' free speech would be endangered".

On its website, the band posted a message saying members were "beyond humbled and thrilled to have won this case at the Supreme Court".

The team has used the "Redskins" name since 1932.

Government officials said the law did not infringe on free speech rights because the band was still free to use the name even without trademark protection.

Like this: