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SCOTUS to determine validity of “The Slants” trademark, may affect “Redskins” trademark as well

SCOTUS to determine validity of “The Slants” trademark, may affect “Redskins” trademark as well

Challenge to law barring “disparaging” trademarks

We followed the Washington Redskins name controversy rather closely, including legal action taken against them.  Now the Supreme Court is taking up a case that, while not directly related to the Redskins, may impact the team and its name.

The Washington Post reports:

The Supreme Court will decide whether a federal law that bars the registration of disparaging trademarks violates free speech, a case with direct implications for the Washington Redskins in their fight to defend their famous team name.

The justices on Thursday announced that they will consider whether part of the 1946 Lanham Trademark Act that prohibits registration of a trademark that “may disparage” persons violates the First Amendment, as an appeals court has ruled.

The Court didn’t take the Redskin case, but instead took another with similar implications that was further along in the legal process.

The Washington Post continues:

The court did not take the Redskins case, but instead chose another that is further along in the legal process. The lawsuit was filed by performer Simon Shiao Tam, whose Asian American rock band is known as The Slants and who was turned down by the U.S. Office of Patent and Trademark Office when he tried to register the band’s trademark.

The patent office said the name was likely to disparage a significant portion of Asian Americans. But Tam said the name is an attempt to reclaim a slur and use it “as a badge of pride.”

A majority of the U.S. Court of Appeals for the Federal Circuit, which hears patent and trademark suits, said the law requiring the rejection of trademarks that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” violates the First Amendment’s free speech guarantee.

The Justice Department asked the Supreme Court to reverse the lower court’s decision, and Tam agreed the justices should review the issue.

“Simon Tam is not a bigot; he is fighting bigotry with the time-honored technique of seizing the bigots’ own language,” Tam’s lawyer, John C. Connell, wrote. “Only an uninformed philistine could find the band’s name disparaging.” Tam, incidentally, has criticized the Redskins nickname.

SCOTUSblog writes up the case as follows:

Lee v. Tam brings the world of rock music to the often quiet court. Simon Tam, the leader of the musical group The Slants, had asked the U.S. Patent and Trademark Office to register the band’s name. But the PTO refused, explaining that the mark disparages individuals of Asian ancestry. A federal appeals court ruled that the provision of the federal trademark law that allows the PTO to refuse to register “disparaging” marks violates the First Amendment. The federal government (on behalf of Michelle Lee, the director of the PTO) asked the justices to review that decision, arguing that the lower court’s ruling would bar the PTO from refusing to register “even the most vile racial epithet.” Another group will be watching this case very closely: the Washington Redskins, whose trademark the PTO cancelled recently. The Redskins had urged the justices, if they were to grant review in Tam, to take on their case as well, even before a federal appeals court could weigh in.

SCOTUSblog also notes of the case:

Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

We’ll keep an eye on this and update as we learn more.

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Comments

“Only an uninformed philistine could find the band’s name disparaging.”

OK, I gotta stick up for the uninformed philistines here. Damn it…!!! What is this guy?, philistineOphobic…???

    So you’re advocating for the Philistinians?

      Ragspierre in reply to UJ. | September 29, 2016 at 10:30 pm

      #philistineLivesMatter…!!!

        legacyrepublican in reply to Ragspierre. | September 30, 2016 at 3:44 am

        Rags, you are so right! 😉 I mean, all Goliath was trying to do was save lives and this police dude comes along for no reason at all and takes a single head shot and kills him!

        And pray tell what did he kill Goliath for? His motive was a lifetime tax deduction, marry the King’s daughter, and a chance to advance his career.

        Somebody tell BLM, #GoliathWasAssainated by a white dude! 🙄

        Let the protest riots in Israel begin!

I seem to recall a hip-hop group that called itself N***ers With Attitude. Not that I’ve ever listened to any of their ‘music”, but I’ve never heard anyone challenge their right to use the name or to protect the group’s name from its use by others.

    Milwaukee in reply to Geologist. | September 30, 2016 at 1:37 am

    To have even considered that their title might be racist was white-privilege-racist (WPR), and deplorable.

    The mention it in a post, was doubly WPR, and more deplorable.(We might even say that it is proof in “spades” of your deplorable ness, but Only an uninformed philistine could find “in spades” to not be racist and deplorable. I’ll report myself.

    Report to a re-education camp today before you are found beyond irredeemable.

    Today, for your own good, please report yourself.

      Geologist in reply to Milwaukee. | September 30, 2016 at 11:24 pm

      Can my comment be white privilege racist (or double that!) if I am not white? I guess that because I usually pass as white, I am still getting “white privilege” and hence I can be guilty of white privilege racism. Thanks for making me think about this issue!

So, Tam’s lawyer is arguing that the name isn’t offensive and so doesn’t violate the Lanham Act.

From what’s recounted here, he’s not arguing this as a First Amendment case at all, although the Court of Appeals decided it as one. A proper First Amendment argument would claim that the Lanham Act is unconstitutional, not that it may be constitutional but isn’t violated by his client.

The First Amendment managed to avoid questions of philistimism

Year 2051 trivia on stupid laws from history: “In 2016 it was made illegal to name your band The Slant.”

    Henery, I get the feeling, from your comments on this forum that you, like I, am are on the right side of 70 years old time line. If someone came along and offered me a risk free cryogenic chance so I could wake up in 200 years, I don’t think I would take it.

    Let these children either work it out or destroy themselves. I want no part in it.

      Henry Hawkins in reply to Anchovy. | September 29, 2016 at 9:26 pm

      Actually, I just turned 61, but we do seem sympatico, and I have noticed myself drawing inward in real life on matters of politics, culture, etc. My youngest just graduated from University of North Carolina, located in the People’s Republic of Chapel Hill, and I often listen to them talking from another room, aka eavesdrop, and what I hear often makes me giggle at the idealistic inanity while also stirring up deep concerns for the future. I’m also on the back side of the hill and, like you, I believe I’d decline the cryogenics as well.

        Yesterday a young lady told me that I look good for 70. I’m still analyzing that one. As for being on the back side of the hill, history tells us that the reverse slope offers good protection from Naval gunfire and the need to satisfy snowflakes.

    Nonsense. Nobody in this case suggests that it is or should be illegal to use such a name. On the contrary, the PTO’s position is that it is legal for everyone to use it, and refuses to grant Mr Tam a legal monopoly on it.

They need to determine the validity of Pro-Choice, Planned Parenthood, “=”, [class] diversity, and other euphemisms.

Who’s the racist assuming ‘The Slant’ can only refer to the perjorative term based on Asian eye shape?

MSNBC could just as easily be called The Slant for obvious reasons. It’s also a standard football term. “Red dog slant right on two… break!”

Maybe the Court will spell it out again. All speech* is protected, even that speech which others find particularly offensive, who often attach a “hate speech” descriptor on that protected speech in order to discourage others from even trying their hand at speech. In the end only offensive speech needs the 1st Am. protections. A solid ruling could put an end to this micro-aggression nonsense.

*Okay to the exception on the incitement of imminent danger.

    Milhouse in reply to fscarn. | September 30, 2016 at 1:45 pm

    The question isn’t whether all speech is protected. Of course it is. The question is whether Congress may refuse to grant a legal monopoly on the use of a name the PTO finds offensive. Trademark protection is not a right; it’s a gift from Congress. Congress could repeal it tomorrow morning, if it liked. Therefore it can impose conditions on its grant of this gift. The question is whether it can make it a condition that the grantee shall refrain from certain protected speech.

So “The Slants” discriminates but ““The Golden Gays” does not?

I don’t know how to define disparaging remarks, but I know it when I see it and the band name in this case is not that!

This, this is what people are worried about, just another reason America is falling cause of the Left.

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