Supreme Court and Disparaging Trademarks

The United States Supreme Court on September 29 consented to take a decision on whether a particular federal law which denies any kind of protection to any disparaging trademark can survive scrutiny in the light of First Amendment.

The justices said that will consider if the examiners of the federal trademark violated the free speech clause of the constitution when they rejected the application submitted by The Slants. The latter is a dance rock band. Its members are Asian-American. The lead singer was the principal in the said application. A federal appeals court had rejected- by a divided vote- the 70 year provision which allows federal examiners to refuse any disparaging trademarks to be made on government registry. The case is important as it will lead to an effective solution concerning a football team-the Washington Redskins.

This trademark case was one of the eight cases which the justices selected from a huge number of review seeking petitions submitted in the summer. The list of other admitted cases include deportations, criminal fines and students with disabilities.

The dispute over trademarks began when Patent and Trademarks Office did not provide any protection to the team and the band as a part of Lanham Act, a Federal law. This states that trademarks which disparage national symbols, institutions and beliefs should not be federally registered. In 2015, the Washington federal appeals court found the Lanham Act’s provision for disparagement unconstitutional.

Judge Kimberly A. Moore of United States Court of Appeals for the Federal Circuit gave the ruling by a 9-3 decision that while a few rejected trademarks communicated hurtful speech which harms the members of frequently stigmatized communities. She also added that even hurtful speech is protected by First Amendment.

Recent decisions by the Supreme Court have protected offensive speech, including hateful protests seen at military funerals, lies concerning military honors and animal cruelty depictions. The concerned High Court ruling could affect the outcome of a similar case that involves Redskins of the National Football League. The team’s trademark federal registration was canceled by a federal judge in 2015 citing that the said name disparages the Native Americans.

When it came to The Slants, Simon Shiao Tam, the founder of the band said that the name was given intentionally to reclaim a supposedly pejorative term which can be described as anti-Asian. He said that the band wanted to tackle such stereotypes.

Leave a Comment