The Supreme Court is considering a First Amendment challenge to a law barring the government from registering trademarks that are deemed offensive. In what is certainly one of the highest-profile trademark case in years will be argued before the U.S. Supreme Court, the case involves an Asian-American band called "The Slants" that was denied trademark registration with the U.S. Patent and Trademark Office ("USPTO") because trademark examiner have held that the name disparages Asians.
The Slants - a Portland rock band organized by Simon Tam, an Asian-American musician and political activist - alleges that the 70-year-old law (Lanham Act's Section 2a) barring offensive trademark registrations violates free speech rights. A federal appeals court ruled that the law is unconstitutional, but the government has appealed.
A victory for the band could also decide a separate legal battle involving the Washington Redskins. The trademark office canceled the football team's lucrative trademarks in 2014 after finding the word Redskins is disparaging to Native Americans.
At issue is a law that prohibits registration of marks that "may disparage ... persons, living or dead, institutions, beliefs or national symbols."
Slants founder Simon Tam says his goal in choosing the name was to reclaim a derisive slur and transform it into a badge of ethnic pride. But the trademark office said a term can be disparaging even if it's meant to be used in a positive light. The band scored a victory in 2015 when a federal appeals court in Washington ruled 9-3 that the First Amendment protects "even hurtful speech that harms members of oft-stigmatized communities."
The Obama administration wants the high court to overturn that ruling. It says that the law does not restrict speech because the band is still free to use the name even without trademark protection. The Justice Department argues in legal briefs that the federal government can decline to be associated with "racial epithets, religious insults and profanity as trademarks."
Like the Slants, the Redskins say their name is meant to honor American Indians. But the team has spent years fighting legal challenges from Native American groups that say it's a racial slur. A federal judge upheld the trademark office's cancellation of the team's name and the Redskins are appealing. The matter is on hold pending the outcome of the Slants case.
The Redskins had hoped to piggyback on the Slants case and have the Supreme Court hear their dispute at the same time. But the justices declined to take up a case that is still working its way through lower courts. The team has filed a brief supporting the Slants.