Supreme Court says government can't refuse disparaging trademarks

Jun 20, 2017, 00:57

The Supreme Court ruled on Monday that the law permitting the U.S. Patent and Trademark Office to turn down "disparaging" trademarks violates the First Amendment.

"When I started this band, it was about creating a bold portrayal of Asian American culture", Tam says in the statement released this morning.

That prohibition was part of a 71-year-old law which had gone largely unnoticed outside of intellectual property circles for decades but which gained recent currency in the sports world after the U.S. Patent and Trademark Office (PTO) stripped the Washington Redskins of trademark protection on the basis of "Redskins" being deemed racially offensive.

"The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates", Alito added.

In a 39-page opinion that came with several concurrences, Justice Samuel Alito wrote that the rule - the so-called disparagement clause of Lanham Act's Section 2a - amounted to discrimination based on unpopular speech.

Justice Neil Gorsuch joined the court after arguments were heard in the case and did not participate in Monday's decision. That case, before a federal appeals court in Richmond, had been on hold while the Supreme Court considered the Slants case. Coleman and his team argued anything less than full trademark protection would shortchange the band's rights. The Redskins case has been stayed pending the high court's ruling.

The Redskins were excited about the decision, as one could imagine. The court decided the ban on registering "scandalous, immoral, or disparaging remarks" violated the First Amendment.

1972: Native American leaders meet with Redskins President Edward Bennett Williams and urge him to change the team's name. The band's lawyers argued that the government can not use trademark law to impose burdens on free speech to protect listeners from offense.

The team has not yet commented on the ruling, but did try to involve itself in the case while it was ongoing.

1937: Marshall moves the team to Washington.

The team appealed the decision to the Fourth Circuit Court of Appeals. Such statements may eventually be linked to an actual First Amendment exception that prohibits speech that directly incites violence.

Lisa Blatt, a lawyer representing the Redskins, told Reuters the team is thrilled with Monday's ruling because it resolves "the Redskins' long-standing dispute with the government". "Hail to the Redskins". He also said the provision was too vague, giving trademark examiners license to make subjective and even arbitrary decisions.

The ruling was good news for the Washington Redskins and others embroiled in a legal fight over their name. It would simply remove any federal protection for it, opening the team up to legal uncertainty and potential financial losses should they keep it.

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