Justices Say Law On Offensive Trademarks Is Unconstitutional

Justices say government can't refuse disparaging trademarks

Justices say government can't refuse disparaging trademarks

The suit was brought forth by Simon Tam, the founder of the Asian-American rock band The Slants.

Band leader Simon Tam said they were "humbled and thrilled" by the ruling.

The case before the justices concerned a trademark registration application for a band called The Slants.

But the Federal Circuit, ruling on the Slants' case in December 2015, overturned that precedent, declaring that the rule penalized unpopular speech by denying the substantial benefits of a trademark registration. As such, the Redskins should be allowed to regain their trademark registration for their slur of a name. Lee v. Tam made it to the Supreme Court first, though, so Washington's case was docketed.

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Justice Elena Kagan asked whether the First Amendment rule that prohibits the government from discriminating against disfavored views applies to the trademark's ban on "bad" trademarks. As Justice Alito noted in the court's opinion on the case, Tam maintained that naming the band after a slur was an attempt from a member of a marginalized community to reclaim a derogatory phrase used to oppress and strip it of its power. He also targeted KNBC-TV and other stations over use of the name on air.

The Redskins' long-standing court case to regain its trademark protection earned a boost on Monday after a Supreme Court ruling. In particular, the NFL's Washington Redskins-who will evidently stick by that name until death-should be able to re-register for trademarks previously canceled for being disparaging towards Native Americans.

"The Supreme Court has held that Congress can not keep disparaging trademarks out of the federal registration program", they said, "but the Court did nothing to cast doubt on the prior judicial findings that the Washington NFL team's name and trademarks disparage Native Americans".

Indeed, the decision - which struck down the "disparagement clause" of 1946's Lanham Act, the federal statute governing trademarks - is seen as likely to pave the way for the Washington Redskins to trademark that name.

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Trademarks, even ones that may offend many people-of which plenty are registered by the Patent and Trademark Office (PTO)-are private speech, which the First Amendment prevents the government from censoring.

Banzhaf filed a petition to deny the renewal of Washington Redskins owner Dan Snyder's Washington radio station, WWXX-FM, over its use of the term "Redskins" on-air to refer to the team.

Critics of the law said the trademark office has been wildly inconsistent over the years in deciding what terms are too offensive to warrant trademark protection. In 2014, the Trademark Trial and Appeal Board voted to cancel the six trademarks held by the team under the disparagement clause.

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