The Supreme Court on Monday sided with Asian-American dance-rock band The Slants in striking down a provision in trademark law that banned the Patent and Trademark Office (PTO) from registering disparaging names.
A new Supreme Court decision-Matal v. Tam-could restore federal protections to trademarks of the Washington Redskins NFL team but would not shield it if the FCC concluded the name was a racial slur.
In addition to Washington's football team, The Slants have found a disparate group of advocates in their corner, including the U.S. Chamber of Commerce, the Asian American Legal Defense Fund, and the American Civil Liberties Union, which called today's ruing a victory for the First Amendment.
Writing separately, Justice Anthony Kennedy said ban on disparaging trademarks was a clear form of viewpoint discrimination that is forbidden under the First Amendment.
Washington Redskins owner Dan Snyder says he's "thrilled" about the Supreme Court's decision to strike down the disparagement clause in trademark law.
The four more "conservative" justices, led by Justice Alito, explained why trademarks don't constitute a subsidy or other type of government program (within which the government can regulate speech), and that the "disparagement clause" doesn't even survive the more deferential scrutiny that courts give "commercial" speech. "This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints", the court said.
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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!" he said in a statement Monday morning.
As NPR's Nina Totenberg has reported, "the trademark office has denied registration to a group calling itself "Abort the Republicans", and another called "Democrats Shouldn't Breed".
Lisa Simpson, an intellectual property expert, characterized the Supreme Court's decision as a slippery slope.
"The Supreme Court vindicated the team's position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government's opinion", Blatt said.
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. And the idea that our market will be flooded by people who just want to register marks on a whim is ridiculous. people have to have an established business goal, pay the fees, go through the paperwork and have their information in public. But they raised the bar for trademark denials so that names deemed to be offensive but not hateful can survive. The protections include blocking the sale of counterfeit merchandise and working to pursue a brand development strategy.