Government Can't Refuse Disparaging Trademarks, Supreme Court Rules

Now, the Supreme Court says that law is unconstitutional.

The justices ruled the 71-year-old trademark law barring disparaging terms infringes on free speech rights.

So is the trademark for the Asian-American band The Slants, who were at the center of the case.

The case concerned "Chinatown dance rock" band The Slants, which was denied a trademark because its name was deemed offensive. A federal appeals court in Richmond put the team's case on hold while waiting for the Supreme Court to rule in the Slants case. The Supreme Court says the government can't refuse to register trademarks that are considered offensive.

"Big Pecker Brand" T-shirts, a cartoon strip called "Twatty Girl", and the lesbian biker group "Dykes on Bikes" - these lurid names are just some that are now eligible for USA trademarks after a Monday ruling by the Supreme Court found that potentially offensive trademarks are protected by the First Amendment's free speech clause. "Speech may not be banned on the ground that it expresses ideas that offend".

In 2011, "The Slants" tried to trademark their name, but the United States Patent and Trademark Office denied the request based on the grounds that the name is derogatory to Asians. And ... other people whose point of views we don't like ... we're not going to give them door-locking privileges.

After a federal court agreed with Tam and his band, the Patent and Trademark Office sued to avoid being compelled to register its name as a trademark. He said the law could not be saved just because it evenhandedly prohibits disparagement of all groups. I'm proud our band members have helped raise over $1 million for issues affecting Asian Americans, that we've worked with dozens of social justice organizations and that we could humanize important issues around identity and speech in new and nuanced ways. Its rejection transformed the course of the band's career and brought them to nationwide attention: the ACLU called the ruling a "major First Amendment victory" on Monday, and in the months leading up to the decision, the Slants' story reached everywhere from NPR to the Washington Post to Billboard. To do so, he wrote, "is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint". "For reasons like these, the court's cases have long prohibited the government from justifying a First Amendment burden by pointing to the offensiveness of the speech to be suppressed". The team's case remains before the Fourth Circuit Court of Appeals.

"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", Justice Samuel Alito wrote in the majority opinion.

The decision on Matal v. Tam validates years of legal process that began with a simple trademark application. This ruling offers plenty of protection for the Redskins, even though some have protested the use of the name.

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