The Supreme Court rejects rule banning offensive trademarks

Wade Massey
June 21, 2017

The head of an Ohio American Indian group says a Supreme Court decision to strike down the disparagement clause in trademark law won't affect efforts to get the Cleveland Indians to change their Chief Wahoo logo and nickname.

In an unanimous ruling, the Supreme Court moved against a trademark law that denies trademark licensing if the material "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute".

Importantly, nothing stopped Tam from exclusively using The Slants for the name of his band and from stopping others from using The Slants, should he choose to do so, by asserting a claim for unfair competition or false designation of origin under 15 U.S.C. § 1125.

The band's most recent EP, by the way, is titled "The Band That Must Not Be Named". "Since this is a strong ruling from the Supreme Court, you can see them moving quickly to resolve this case", Eric Ball, a trademark litigation partner at Fenwick & West, LLP, told Bloomberg BNA. Alito rejected arguments that the government has an interest in preventing speech that is offensive to certain groups.

As Vice reported, SCOTUS reaffirmed that it protects all speech, "even hateful, because ' the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers'".

The Redskins made similar arguments after the trademark office canceled the team's trademark in 2015. "This is just another day for Native Americans".

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It's a bummer that the decision means the Skins will likely go on using their shitty racist name, but it's ultimately a good thing for free speech that the Slants won their case. While it may be legal for the team to use the name, she said, that doesn't make it right.

As NPR's Nina Totenberg has reported, "the trademark office has denied registration to a group calling itself "Abort the Republicans", and another called "Democrats Shouldn't Breed". The plurality concluded that the disparagement clause is unconstitutional because, even if trademarks are considered to be commercial speech subject to the relaxed scrutiny of Central Hudson, the disparagement clause can not satisfy that standard, as the prohibition is not narrowly drawn to the interests it purports to advance. Alito also said trademarks are not immune from First Amendment protection as part of a government program or subsidy.

Daniel Snyder, owner of the Washington NFL team, offered a succinct reaction to a Supreme Court ruling Monday - and he put it in caps.

The federal government, which appealed the appeals court ruling, said in court papers that the government should not be required to approve trademarks "containing crude references to women based on parts of their anatomy; the most repellent racial slurs and white-supremacist slogans; and demeaning illustrations of the prophet Mohammed and other religious figures".

Amie Peele Carter, intellectual property attorney at Faegre Baker Daniels LLP, anticipates the decision will lead to a "significant number" of applications for disparaging marks.

Other reports by GlobalViralNews

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