Supreme Court strikes down law blocking disparaging trademarks

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Yuri Gripas Reuters
Author

20 June, 2017

The Supreme Court on Monday sided with Asian-American dance-rock band The Slants in striking down a provision in trademark law that banned the Patent and Trademark Office (PTO) from registering disparaging names.

After the government rejected The Slants' request, Tam appealed to the U.S. Court of Appeals for the Federal Circuit in Washington, which in 2015 ruled that the so-called disparagement provision of the 1946 law governing trademarks ran afoul of the Constitution's guarantee of free speech. Courts had long ruled that it didn't violate the First Amendment because it doesn't actually bar the real-life use of the offending mark, nor does it prevent the owner from enforcing common law trademark rights.

The case has drawn intense interest as it focused on the rights of free speech enshrined in the First Amendment of the U.S. constitution, at a time of heightened racial tensions in the country.

The justices ruled that the 71-year-old trademark law barring disparaging terms infringes free speech rights.

In his opinion for the court, Justice Samuel Alito rejected arguments that trademarks are government speech, not private speech.

That appears to mean that the Redskins also will be able to continue using their name, even though it offends people as well.

The NFL team's appeal has not yet been heard by a federal appeals court in Richmond, Va.

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Dan Snyder, the team's owner, has said that the name "represents honor, represents respect, represents pride".

Tam said the band was "beyond humbled and thrilled" with the ruling.

The trademark office canceled the football team's lucrative trademarks in 2014 after ruling that the word "Redskins" was an insult to Native Americans.

"The Supreme Court vindicated the team's position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government's opinion", Blatt told the Associated Press.

Redskins attorney Lisa Blatt said the team was "thrilled" with the court's decision. As Justice Alito noted in the court's opinion on the case, Tam maintained that naming the band after a slur was an attempt from a member of a marginalized community to reclaim a derogatory phrase used to oppress and strip it of its power.

"A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all", writes Kennedy. The band's lawyers argued that the government can not use trademark law to impose burdens on free speech to protect listeners from offense.

The United States Patent and Trademark Office appealed that ruling to the high court in April, and the justices granted certiorari in September. The protections include blocking the sale of counterfeit merchandise and working to pursue a brand development strategy.


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