July 27, 2017

Supreme Court strikes down law blocking disparaging trademarks

26 June 2017, 11:40 | Marion Schneider

Simon Tam of The Slants. Ariel Zambelich NPR

Simon Tam of The Slants

The case has far-reaching implications, most notably in the on-going legal battle by the Washington Redskins to secure a trademark for its controversial team name, the Washington Post reported.

According to the Telegraph, Justice Samuel Alito said, "The disparagement clause violates the First Amendment's free speech clause".

"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".

In 2015, Tam won a case in the United States Court of Appeals for the Federal Circuit.

The court ruling came in a separate case brought by Oregon-based, Asian-American band The Slants, which had been denied a trademark because its name was considered disparaging.

"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".

The top USA court says the government can not deny registration of trademarks with offensive terms, arguing that is a violation of the right to free speech.

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.

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Slants founder Simon Tam said his goal was to reclaim a derisive slur and transform it into a badge of ethnic pride.

The court argued that trademarks are private, not government speech, and therefore are protected.

The Supreme Court has upheld that conclusion in Matal v. Tam (the case originated was Lee v. Tam, but changed with the appointment of Joseph Matal as PTO Director).

The Supreme Court has ruled in favor of The Slants, a Portland-based band, in a free speech and trademark case. 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", Tan said.

Trademark office spokesman Paul Fucito said officials are reviewing the court's ruling and planned to issue further guidance on how they will review trademark applications. The decision is likely to improve the Redskins' chances of retaining their trademark.

The opinion may affect the NFL's Washington Redskins, who are involved in a legal dispute with the U.S. Trademark Office.

This SCOTUS ruling protects Washington's First Amendment right to do just that. The protections include blocking the sale of counterfeit merchandise and working to pursue a brand development strategy.

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