Supreme Court Axes Law Banning Disparaging Trademarks

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Kevin Daley Supreme Court correspondent
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The Supreme Court struck down a federal law banning the registration of disparaging trademarks Monday, finding the law violates the First Amendment’s free speech clause.

The ruling, written by Justice Samuel Alito, says that trademarks are private, not government speech, and that the government may not curtail even offensive expression.

“Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way,” Alito wrote.

The 1946 Lanham Trademark Act prohibits the registration of a trademark that “may disparage” a person, community, or institution. A challenge to the law was brought by Simon Shiao Tam, bass-player for the Chinatown dance rock band “The Slants.” The Patent and Trademark Office (PTO) denied the band’s request for a trademark, finding their name could offend Asians. The band is composed exclusively of Asian-Americans, who selected the name to strip the slur of its potency.

The U.S. Court of Appeals for the Federal Circuit, an appeals court which hears patent and trademark cases, found in Tam’s favor in 2016.

The outcome of The Slants’ case will shape the resolution of the Washington Redskin’s battle with the PTO. Six of the team’s registrations were cancelled after the Trademark Trial and Appeals Board found the team’s name offensive to American Indians. The franchise’s attorney, Robert Raskopf, was present at the Supreme Court during oral arguments in January.

Redskins owner Dan Snyder has refused to change the name of the franchise, arguing his team’s mascot “represents honor, respect and pride.”

The federal government argued that trademarks constitute government speech, and the First Amendment should not be understood as requiring the government to make offensive statements. An incredulous Alito explained that if trademarks are in fact government speech, then the government is making nonsensical and contradictory statements:

If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. It is expressing contradictory views.9 It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.
For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make.believe” (Sony), “Think different” (Apple), “Just do it” (Nike), or “Have it your way” (Burger King)? Was the Government warning about a coming disaster when it registered the mark “EndTime Ministries”?

The Court also rejected the contention that the government is not required to subsidize all forms of speech. 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. Alito concluded that these cases apply in circumstances where the government financially supports speech. Such monetary support does not attend the granting of a trademark.

The Slants trumpeted the ruling as a triumph for civil rights.

“After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court,” they said in a statement. “This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.”

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