In a case that could have far-reaching implications, the U.S Supreme Court has ruled that an Asian-American rock band is entitled to a federal trademark registration of its name.
The band, The Slants, had originally had its trademark application refused by the Trademark Office because “the applied-for mark consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols” in violation of Trademark Act Section 2(a). The Slants thereafter appealed the Trademark Office’s decision to the Federal Circuit Court of Appeals, which held in a 9-3 vote that the USPTO could not refuse registration of “disparaging” marks under The Trademark Act since it violated the First Amendment. The matter has now been finally decided by the U.S. Supreme Court.
Writing for the Court in an 8-0 decision, Judge Alito stated that contrary to the government’s contention, trademarks are private, not government 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 Trademark Trial and Appeal Board had previously acknowledged that its guidelines “for determining whether a mark is scandalous or disparaging are somewhat vague and the determination of whether a mark is scandalous or disparaging is necessarily a highly subjective one.” As reported by Nina Totenberg of NPR and various legal commentators, there now exists the possibility that other names deemed disparaging by the Trademark Office will now be registered. This includes most notably, the ongoing dispute involving the name Washington Redskins. And if as the Court states, that “speech may not be banned on the ground that it expresses ideas that offend,”it seems that this may open up a Pandora’s box into other marks that may be deemed to be “scandalous or immoral” under The Trademark Act as noted by Jess Collen in his Forbes article.