This past week the Supreme Court decided a groundbreaking case concerning an Asian American rock band, the Slants. Their lawsuit has huge implications for the Washington Redskins trademark case and will set the standard for disparaging trademark viability.
In 2011 the band tried to trademark their name with the United States Patent and Trademark Office (USPTO). The USPTO rejected the application, however, citing a portion of the Lanham Act known as the disparagement clause.
Specifically, the statute prohibits trademarks that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The band fought its legal battle for eight years all the way to the nation’s highest court. The band’s founder, Simon Tam, explained that the band did not mean for its name to be disparaging. In fact, the band thought the name would have the exact opposite effect. Tam explained that the band was trying to reclaim a slur and wear it as a “badge of pride.”
Tam stated when the band members were growing up, they felt people considered having slanted eyes as a negative thing. He said, “I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead.”
The Supreme Court decided that the Lanham Act’s disparagement clause violates the First Amendment’s free speech protection. It did not matter that the law equally prohibited disparaging comments towards all groups of people.
Justice Alito explained the disparagement clause is viewpoint discrimination. Alito wrote, “Giving offense is a viewpoint,” and elaborated, “Speech may not be banned on the ground that it expresses ideas that offend.”
The decision will likely force the USPTO to register any number of hateful or offensive trademarks. Therefore, experts anticipate a large influx of possibly disparaging trademarks applications.
The Redskins Disparaging Trademark Case
The Slants’ case is likely to determine the outcome of the controversial Washington Redskins case. Under the disparagement clause, The Redskins franchise lost its trademark in 2014 and has been battling the decision since then.
The case is currently in the U.S. Court of Appeals for the 4th Circuit and will proceed now that the Supreme Court has issued its Slant opinion.
The Supreme Court decision supporting his stance that the government cannot cancel or deny a trademark based on its own opinion thrilled Dan Snyder, the Redskins owner.
The decision disappointed the Native Americans opposing the Redskins trademark. However, their lawyer suggested there is some comfort in the fact the Supreme Court did not undermine the argument that “redskin” is disparaging to Native Americans.