In a decision that may end up allowing the Washington Redskins to keep its team name and mascot, the Supreme Court ruled Monday the federal trademark law banning offensive names is unconstitutional. In this particular case the court sided with a Chinatown dance rock band named The Slants, whose name had been deemed racially disparaging by the U.S. Patent and Trademark office.
In 2014 the U.S. Patent and Trademark Office used that same clause to cancel the Washington D.C. NFL team’s six trademarks on the name “Washington Redskins” based on the same law (the Redskins case is working its way through the courts).
In a unanimous 8-0 decision (the decision was made before Neil Gorsuch was nominated), the high court ruled the law’s “disparagement clause” violates the free speech clause of the First Amendment.
“The Slants,” a band based in Oregon, and composed of Asian-Americans was denied a trademark because its name was deemed offensive.
In his opinion, Justice Samuel Alito wrote, according to Fox News, “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. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”…
Alito cautioned in his opinion that the government still “has an interest in preventing speech expressing ideas that offend.”
But he suggested the clause in question was too sweeping: “The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.”
Slants founder Simon Tam said his goal was to reclaim a derisive slur and transform it into a badge of ethnic pride. But the trademark office said a term can be disparaging even when used in a positive light. A federal appeals court had sided with the band, ruling that the law violates the First Amendment.
While nothing is certain, this ruling should mean that the U.S. Patent and Trademark Office has to give the Redskins back their trademarks, and New York Giant fans (yo!) won’t have to hate a different team.
Cross-posted at The Lid