Justices say government can't refuse disparaging trademarks

by Abel Hampton June 20, 2017, 0:58

According to the Associated Press, the Supreme Court said the government can't refuse to register trademarks that are considered offensive.

"We now hold that this provision violates the Free Speech Clause of the First Amendment", Justice Samuel Alito wrote in his opinion. The band's lawyers have argued that the government can not use trademark law to impose burdens on free speech to protect listeners from offense. The team is now appealing a federal judge's decision to uphold the U.S. Patent and Trademark Office's cancellation of their trademark, because it is a racial slur and disparages Native Americans (and, per this website's house style, is not fit for print).

In a Supreme Court ruling that is seen as a win for the Washington Redskins, the court struck down parts of a law banning offensive trademarks.

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.

The section of the law at issue bars the trademark office from registering a name that may "disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute". He said the law could not be saved just because it evenhandedly prohibits disparagement of all groups.

The team has its own separate case challenging the ban, but it chose a more procedurally lengthy appellate route than the Slants, meaning the band's case reached the high court first. The government argued that granting a trademark to The Slants effectively constituted a subsidy - citing a line of cases going back decades, they argued that the government is not required to sponsor or underwrite expression. To do so, he wrote, "is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint".

"When I started this band, it was about creating a bold portrayal of Asian American culture", Tam says in the statement released this morning. "For reasons like these, the court's cases have long prohibited the government from justifying a First Amendment burden by pointing to the offensiveness of the speech to be suppressed".

The Redskins say it vindicates that team's position that a trademark can't be denied based on government opinion. The court took on the case late in September and arguments were heard in January.

Hopefully, this ruling will make everything simpler, but it also allows for the possibility of a great deal of hurtful trademarks. Instead, it meant that they would receive no federal protection if they challenged other individuals or companies' use of the name.

The justices declined to review the ruling that dismissed claims by Ohio's Democratic Party and homeless rights groups that the state's "perfect form" law, which invalidates ballots for even minor errors, deprived thousands of people of their right to vote, violating the federal Voting Rights Act.


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