Rejecting trademarks that 'disparage' others violates First Amendment


The case involved an appeals court decision--regarding an Asian-American band trying to trademark the name "Slants"-that the disparagement provision in law that prohibits trademarks that "disparage persons, institutions, beliefs, or national symbols" is an unconstitutional abridgement of free speech-it is usually the most controversial speech that is most in need of protecting".

The U.S. Supreme Court said the federal government can't constitutionally withhold legal protections for trademarks seen as disparaging, throwing out a 70-year-old provision as a free-speech violation.

Slants founder Simon Tam tried to trademark the band name in 2011, but the U.S. 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. And, as we have explained, that idea strikes at the heart of the First Amendment.

In their decision, the U.S. Supreme Court affirmed the lower court's opinion.

The justices said part of a law that bars the government from registering disparaging trademarks violates free speech rights. Justice Samuel Alito, who wrote the the court's opinion, agreed.

The NFL team's appeal has not yet been heard by a federal appeals court in Richmond, Va. But past year, it allowed Texas to ban specialty license plates featuring the Confederate flag because it was considered a form of government speech.

Redskins owner Dan Snyder has repeatedly said that he will not change the nickname despite the opposition.

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Band says decision means "marginalized communities" can determine for themselves what's best, even if it involves words thought racially insensitive.

"I am THRILLED", Snyder told the AP. "The Supreme Court vindicated the Team's position that the 1st Amendment blocks the government from denying or canceling a trademark registration based on the government's opinion".

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.

The outcome is likely to affect the legal case of the Washington Redskins, whose trademark registration was revoked in 2014 under the same disparagement clause.

Patent and Trademark Office spokesman Paul Fucito said the agency was reviewing the decision.

In the Slants case, government officials argued that the law did not infringe on free speech rights because the band was still free to use the name even without trademark protection.

In June 2014, the United States Patent and Trademark Office canceled six federal trademark registrations for the Redskins, saying the nickname is "disparaging to Native Americans" and can not be trademarked under federal law that prohibits trademark protection on offensive or disparaging language.