The Supreme Court rejects rule banning offensive trademarks

Asian-American band win top court case over offensive trademark

The U.S. Supreme Court's Lee v. Tam decision struck down a provision of the federal trademark law - referred to as the "disparagement clause" - that permits the U.S. In the case before the Supreme Court, government lawyers argued that the trademark law did not violate free speech, because the band could still use the term - they just would not have trademark protection. It offends a bedrock First Amendment principle: "Speech may not be banned on the ground that it expresses ideas that offend". But even in this sort of program, the court held, viewpoint discrimination - including against allegedly racially offensive viewpoints - is unconstitutional.

In this case, they came for a self-described "Chinatown Dance Rock" band with a cheeky name, and the Supreme Court said, Sorry, not in America.

Tam insisted he was not trying to be offensive, but wanted to transform a derisive term into a statement of pride.

The ruling could benefit the NFL's Washington Redskins, whose trademark was canceled based on the same law in a separate proceeding.

Tam was happy about the ruling. He added in a Facebook update that for him, the case had been about "the rights of all marginalized communities to determine what's best for ourselves".

This ruling puts "a period to a lengthy legal battle over the continuing use of marks such as the Washington Redskins, which are considered offensive by many and have been the subject of considerable debate", according to Drew. "The Court's decision, however, was narrow", the plaintiff's statement said. "Hail to the Redskins".




The court's decision is good news for The Slants, of course, but also for the Washington Redskins.

Free speech advocates at the time disagreed, arguing that the government should not act as the arbitrator of what speech is and is not offensive.

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. ยง 1125.

Brian Cladoosby, president of the National Congress of American Indians, said the name "does not honor Native Americans, it honors those who committed genocide against Native Americans".

So now, with the disparagement clause no longer an issue for Snyder and his team, the possibility exists once again for him to register trademarks for the team's name.

While the justices all agreed on the outcome, they split in their rationale. The court took on the case late in September and arguments were heard in January. When a flawed Washington Post poll showed that only nine percent of 504 self-identified Native Americans deemed the term offensive, the fact that one in 10 find the dictionary-defined slur to be offensive was enough to persuade me to continue to refrain from using it. The same is true for the Redskins, but the team did not want to lose the legal protections that go along with a registered trademark.

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