Supreme Court upholds offensive trademarks as form of free speech

Jun 20, 2017, 00:08

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 its controversial name.

The Supreme Court decided that the US Patent and Trademark Office could not refuse the Portland, Oregon-based band the right to trademark the name, generally seen as a racial slur on Asians but which the group's founder, Simon Tam, had said was an act of "re-appropriation".

The band's victory could be welcome news for the Washington Redskins, which has been waging its own legal fight over the team's name, which some people find offensive.

The case was being closely watched because the Washington Redskins had asked the court to take its case challenging the PTO's decision to cancel its trademark, but the court refused. She said the nickname is a racist slur that never should have been trademarked in the first place. Among them is a 64-page brief filed by Pro-Football Inc., piggybacking The Slants case for the Washington Redskins' NFL team, which lost its trademark protection because the team name was considered disparaging.

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The justices were unanimous in saying that the 71-year-old trademark law barring disparaging terms infringes free speech rights guaranteed in the Constitution's First Amendment.

When the government grants a trademark to a business owner, the owner gains the exclusive legal right to use the name on products and merchandise such as T-shirts. Such suits must be filed by the federal government, not private citizens, that court held.

Band says decision means "marginalized communities" can determine for themselves what's best, even if it involves words thought racially insensitive. Alito also said trademarks are not immune from First Amendment protection as part of a government program or subsidy.

"It canceled the registration for the Washington Redskins in 2014 at the behest of some Native Americans who considered the name offensive".

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"I am THRILLED!" he said in a statement Monday morning.

With today's ruling on Lee v. Tam (known now as Matal v. Tam), the court overturned a provision that is part of the Lanham Act, which that disallowed terms or phrases that "may disparage" persons from receiving federal trademark registration.

The court also said the Voting Rights Act provision at issue could only be enforced by the USA attorney general, and lawsuits by private parties were barred.

Justice Neil Gorsuch joined the court after arguments were heard in the case and did not participate in Monday's decision. He sought to register the name with the trademark office. The band's lawyers argued that the government can not use trademark law to impose burdens on free speech to protect listeners from offense.

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