Justices say law on offensive trademarks is unconstitutional

Asian-American band win top court case over offensive trademark

The Supreme Court on Monday struck down a decades-old law allowing trademarks to be denied on the basis that they are "scandalous, immoral or disparaging".

"(The idea that the government may restrict) speech expressing ideas that offend ... strikes at the heart of the First Amendment", wrote Justice Alito in his opinion.

The Supreme Court decided unanimously that the US Patent and Trademark Office could not refuse the Portland, Oregon-based band the right to trademark the name The Slants, generally seen as a racial slur on Asians, but which the group's founder, Simon Tam, had said was an act of "reappropriation".

As the Washington Redskins case illustrates, there are potentially huge stakes involved in connection with losing federal trademark protection.

The Redskins have a separate case that had been on hold in federal appeals court while the Slants decision was rendered.

Tam insisted he was not trying to be offensive, but wanted to transform a derisive term into a statement of pride. The Skins lost their designation in 2014 under the same clause that the Slants were fighting in court, and while the Slants case does not involve the team directly, it's a clear victory in their fight to keep their name.

Tam said the band was "beyond humbled and thrilled" with the ruling.

"This journey has always been much bigger than our band". Legal experts say that the Washington Redskins trademark could be accepted based on this result.

"Nothing in the opinion undermines the decisions of the TTAB or the District Court that the term "redskin" disparages Native Americans", the group said in a written statement. "Hail to the Redskins".

Redskins attorney Lisa Blatt said the Supreme Court's decision "resolves the Redskins' long-standing dispute with the government". The Slants faced a similar patent office ban.

"If Daniel Snyder wants to get any public dollars for a new stadium, the likelihood of him being able to accomplish that in this environment is really slim until or unless he changes the name of the team", Carter said.

While the justices all agreed on the outcome, they split in their rationale.

"If the federal registration of a trademark makes the mark government speech", wrote Justice Samuel Alito, "the Federal Government is babbling prodigiously and incoherently". In Matal v. Tam, 15-1293, the justices found the disparagement provision of the Lanham Act, which prohibits the registration of trademarks that may "disparage...or bring...into contempt or disrepute" any group of individuals, beliefs, institutions or national symbols, was unconstitutional under the First Amendment's Free Speech Clause.

Will referred to a court brief filed by the Cato Institute in the case. When a flawed Washington Post poll showed that only nine percent of 504 self-identified Native Americans deemed the term offensive, the fact that one in 10 find the dictionary-defined slur to be offensive was enough to persuade me to continue to refrain from using it.

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