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 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.
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.DONATE
Donations tax deductible
to the full extent allowed by law.