A federal appeals court ruled Tuesday that a federal law barring the registration of “offensive” trademarks is an unconstitutional limitation on free speech, a ruling that may pave the way for the Washington Redskins to be able to keep their trademark.
The case before the Court of Appeals for the Federal Circuit, which handles U.S. patent and trademark litigation, concerned an effort by the all-Asian rock band The Slants to trademark their name. The trademark effort was rejected by the U.S. Patent and Trademark Office, on the grounds that “slant” is a derogatory slang term for Asian people, and the Lanham Act prohibits the registration of derogatory terms and phrases as trademarks. That part of the law is flatly unconstitutional, the court ruled. Even though the court agreed that The Slants have a disparaging name, they ruled it is still legal to trademark it. (RELATED: 12 Trademarks That Are Officially Offensive Than Redskins)
“We recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities,” Judge Kimberly Moore said in her majority opinion. “Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others.”
Moore said it didn’t matter that the government’s rules didn’t outright ban certain speech. Simply treating speech differently based on its content, she said, was enough to violate the First Amendment.
The ruling doesn’t directly involve the high-profile case of the NFL’s Washington Redskins, but it could have major implications for that case. The Patent and Trademark Office is trying to cancel the trademark on the grounds it is offensive to American Indians, and the team’s attempt to counter that order is currently being heard in the Fourth Circuit Court of Appeals. The Fourth Circuit isn’t bound by the Federal Circuit’s precedents, but circuit courts sometimes drawn upon one another in making rulings. Furthermore, if the Fourth Circuit rules against the Redskins, the clashing precedents would likely set up a final showdown in the Supreme Court to resolve the issue.
Redskins owner Dan Snyder has consistently maintained the team’s name is not offensive to American Indians, and he has some evidence to support his case. An investigation by linguist Ives Goddard for the Smithsonian Institution found the term originated among Indians as a word to distinguish themselves from white Europeans.
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