You can thank rock ‘n’ roll for ensuring freedom of speech now extends to federal trademark law.
The Supreme Court on Monday struck down a decades-old law allowing trademarks to be denied on the basis that they are “scandalous, immoral or disparaging.”
“We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” Justice Samuel Alito wrote in the majority opinion.
It all started seven years ago when an Asian-American band that calls itself the Slants went to trademark their name. Even though the synth-pop foursome had been touring and recording under the name for about a decade, they got a big fat “no” from the U.S. Patent and Trademark Office.
Why? A bureaucrat said the band name was “disparaging.”
It’s true that “slant” is a racial slur for Asians, but the four Asian members of the Slants wanted to rebrand the word and put a more positive spin on it by using it as their band name. And now, victory is theirs.
“After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court,” bassist Simon Tam said in a statement to Rolling Stone. “This journey has always been much bigger than our band: It’s been about the rights of all marginalized communities to determine what’s best for ourselves.”
As with most Supreme Court cases, the precedent set in the Slants’ victory will be felt far outside the confines of this band. The ruling essentially opens up trademarks to any language — no matter how offensive.
Teams like the NFL’s Washington Redskins see it as a huge win.
Following pushback from Native American activists who found the team name offensive, the PTO canceled six of the team’s trademarks in 2014, and the team has been fighting ever since to earn them back.
Redskins owner Dan Snyder released a statement following the ruling, “I am THRILLED! Hail to the Redskins.” And team lawyers said the decision “resolves the Redskins’ longstanding dispute with the government.”
The language allowing trademark denials was based on the tenet that granting a trademark registration was the same as the government actually speaking — or advocating — the trademark, and the trademark office argued it shouldn’t be forced to speak in ways it disapproves of.
In the unanimous ruling, the justices disagreed, saying that would mean the government is “babbling prodigiously and incoherently” as there are millions of trademarks on the register.
“Had this case gone the other way, the implications would have been grim: The ‘government speech’ doctrine would have made almost any speech that so much as touched government lips subject to the government censor,” Marc Randazza wrote in an opinion piece for CNN. “Protest on government land? Government speech. Speak at a state university? Government speech!”
