Supreme Court Will Hear Ban On Offensive Trademarks

by Kevin Daley

The U.S. Supreme Court will decide whether a federal law banning the registration of offensive or disparaging trademarks violates the First Amendment.

The case has major implications for the Washington Redskins, whose trademark was stripped by the Patent and Trademark Office (PTO) and a federal judge last year. The judge concluded that the team name was offensive to Native Americans.

The challenge to the 1946 Lanham Trademark Act, which prohibits the registration of a trademark which “may disparage” a person, community, or institution was brought by Simon Shiao Tam, bass-player for Chinatown dance rock band The Slants. The PTO denied the band’s request for a trademark, finding their name could give offense to Asians. The band is composed exclusively of Asian Americans.

The U.S. Court of Appeals for the Federal Circuit, an appeals court which hears patent and trademark cases, found in Tam’s favor last year. (RELATED: Judges, Lawyers Honor Smut Peddler After Historic SCOTUS Case)

“The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks,” the divided court concluded.

Tam claims the name was selected to strip the slur of its potency. “Simon Tam is not a bigot; he is fighting bigotry with the time-honored technique of seizing the bigots’ own language,” Tam’s lawyer John Connell wrote in court documents. “Only an uninformed philistine could find the band’s name disparaging.”

The U.S. Department of Justice argues the federal prohibition on disparaging trademarks does not prevent a private entity from using any name or image. Furthermore, an affected party may seek recourse from a state agency which grants trademarks. They also argue that there is a distinction between allowing speech and refusing to support or endorse it.

“This Court has repeatedly recognized the critical constitutional distinction between penalizing speech and refusing to support it,” DOJ argued in its petition. “The government may not prohibit or penalize respondent’s racial slurs except in the most compelling circumstances.”

The outcome of the case could be dispositive in the Redskins’ battle to retain their trademark. Their case is currently pending before the 4th U.S. Circuit Court of Appeals. The Supreme Court’s ruling, should it come before the 4th Circuit, will substantively shape the outcome of their case.

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