Arts&Culture

Justices say law on offensive trademarks is unconstitutional

Justices say law on offensive trademarks is unconstitutional

The Supreme Court ruled Monday that a law that prohibits the government from registering trademarks that "disparage" others violates the First Amendment, a decision that could impact the Washington Redskins' efforts to hang on to their controversial name.

The justices ruled the 71-year-old trademark law barring disparaging terms infringes on free speech rights.

"It is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys", he wrote.

The Supreme Court ruling in the Slants case will likely give the Redskins leverage in their own court battle. But the disparagement clause was the wedge that activists were trying to use to force the Washington Redskins to change the National Football League team's name (the team has been fighting the cancellation of its trademark in court).

Redskins owner Dan Snyder said he was thrilled and Neel Sukhatme with Georgetown Law School agreed he has every reason to be. The Redskins also contend their name honors American Indians, but the team has faced decades of legal challenges from Indian groups that say the name is racist.

The provision was not saved by the government's arguments that trademark protection was a matter of "government speech" or was a "subsidy" over which the first Amendment did not apply in its broadest sense.

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The case before the Supreme Court, however, didn't directly affect the Redskins.

The Slants is not the only name that has been rejected by the trademark office as too derogatory. The team's trade claim was canceled in 2014 and is still pending in federal court.

"Holding that the registration of a trademark converts the mark into government speech would constitute a huge and unsafe extension of the government-speech doctrine, for other systems of government registration [such as copyright] could easily be characterized in the same way", Justice Samuel Alito wrote in the majority opinion. The case is now in the U.S. Court of Appeals for the 4th Circuit in Richmond, pending the Supreme Court's decision in the Slants case.

The free speech victory goes to Simon Tam, the Asian-American frontman for The Slants who attempted to register his rock band's name.

"The Lanham Act is a federal law that - until today - permitted the government to deny registered trademarks determined to be "disparag [ing],' or otherwise "offensive" or "immoral" to a "substantial composite" of an affected group". Tam appealed to the Federal Circuit, where the en banc court found the disparagement clause facially unconstitutional under the First Amendment. When he had first filed the case, he had lost several legal rounds before eventually making his way to the Supreme Court. But the office canceled the registrations in 2014 after finding the name disparaged Native Americans.


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