Published: Tue, June 20, 2017
Entertaiment | By Simon Arnold

Ban on trademarks of racially offensive names is ruled unconstitutional

In this April 4, 2017 file, the Supreme Court in Washington.

The Supreme Court ruled in a case involving the rock band "The Slants" that the government can't refuse to register trademarks that are considered offensive.

Slants founder Simon Tam tried to trademark the band name in 2011, but the U.S. Patent and Trademark Office denied the request on the ground that it disparages Asians. Courts had long ruled that it didn't violate the First Amendment because it doesn't actually bar the real-life use of the offending mark, nor does it prevent the owner from enforcing common law trademark rights.

In September 2016, the Supreme Court announced it would hear the similar case concerning The Slants, which indirectly was a win for the Redskins franchise on its own pending trademark battle.

"The disparagement clause violates the First Amendment's Free Speech Clause", Justice Samuel Alito wrote in his opinion for the court. He also targeted KNBC-TV and other stations over use of the name on air. Such suits must be filed by the federal government, not private citizens, that court held.

The band has said it wanted to reclaim what is often seen as a slur.

The National Congress of American Indians and the Change the Mascot campaign clearly recognized the import of a decision that federal trademarks, even offensive ones, can be registered but called on the NFL to change the name. Snyder issued a quick statement after Monday's decision: "I am THRILLED".

With today's ruling on Lee v. Tam (known now as Matal v. Tam), the court overturned a provision that is part of the Lanham Act, which that disallowed terms or phrases that "may disparage" persons from receiving federal trademark registration.

Redskins attorney Lisa Blatt said the court's decision effectively resolves the Redskins' longstanding dispute with the government. Alito also said trademarks are not immune from First Amendment protection as part of a government program or subsidy.

Alito was backed in the majority opinion by Chief Justice John Roberts Jr., Justice Clarence Thomas and Justice Stephen Breyer. 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 objective, pay the fees, go through the paperwork and have their information in public.

"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", Kennedy said in an opinion joined by Justices Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan. But they raised the bar for trademark denials so that names deemed to be offensive but not hateful can survive. The band's lawyers argued that the government can not use trademark law to impose burdens on free speech to protect listeners from offense.

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