The Supreme Court on Thursday said it would decide, once and for all, whether federal intellectual property regulators can refuse to issue trademarks with disparaging or inappropriate names. At the center of the issue is a section of trademark law that actually forbids the US Patent and Trademark Office (USPTO) from approving a trademark if it “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The case in question involves a Portland-based band called The Slants, who were denied a trademark because their band name is a racist term for people of Asian descent. The court’s decision could impact the ongoing legal battles of the Washington Redskins, who have also challenged the law. The law in question is the 1946 Lanham Act, a portion of which prevents the trademarking of offensive terms. The Slants were denied trademark protection in 2013, and appealed the ruling. The band members, who are Asian American, say their name is an act of reclamation. The band name the “Slants” stems from an offensive term referring to Asian Americans related to their eyes. The trademark dispute arose when Simon Tam, the founder of the band, chose the name the Slants to co-opt and make fun of a slur directed at Asians.
Still, a high court ruling in favor of the Slants could bolster the football team’s legal fight. Both groups argue that it is unconstitutional for the government to reject trademark rights for offensive speech. The Slants tried to trademark the band’s name in 2011, but the U.S. Patent and Trademark Office denied the request on the ground that it disparages Asians. The band sued, and a federal appeals court ruled last year that the law barring offensive trademarks violates free speech rights. The Redskins hoped to piggyback on the band’s case, asking the Supreme Court to consider both disputes at the same time. The trademark office canceled the team’s trademarks last year after finding they are disparaging to Native Americans. But the team’s appeal has not even been heard yet by a federal appeals court in Richmond, Virginia. In an unusual request, the team asked the Supreme Court to intervene before the lower court acts. The high court almost never grants such requests.
The Slants say their goal in choosing the name was to transform a derisive term about the shape of Asian eyes into a statement of ethnic and cultural pride. The Redskins have similarly claimed their name honors American Indians, but the team has faced years of legal challenges from Indian groups that say the name is racist. The team has also come under intense public pressure to change the name, though owner Dan Snyder has refused. In the band’s case, a divided federal appeals court in Washington, D.C., struck down a portion of the 70-year-old federal trademark law. The court’s majority said the First Amendment protects “even hurtful speech that harms members of oft-stigmatized communities.”
The Slants and the Redskins can continue using their preferred names even without trademark protection. But a trademark confers certain legal benefits, including the power to sue competitors that infringe the trademark. For the Redskins, the team could lose millions if it can’t block the sale of counterfeit merchandise.The Redskins say they have an even stronger case against the government than the Slants because team has already relied on financial advantages of trademark protection for many years. The team registered six trademarks including the name between 1967 and 1990.
Keywords: Trademark, Supreme Court, Redskins, USPTO, trademark protection, Asians, The Slants