In a rare unanimous decision, the Supremes recently declared that denying a trademark application because it might be insulting violates the applicant’s right to free speech.
To clarify, this is a decision by the United States Supreme Court, not a long-lost song by Diana Ross and the Supremes, although the story does have musical notes.
In November 2011, a member of a Portland, Oregon band filed a trademark for the band’s name, “The Slants.” All members of the band are Asian American, and chose the name to “drain its denigrating force as a derogatory term for Asian persons.” See https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf
The U.S. Patent and Trademark Office (“PTO”) rejected the band’s application under a portion of federal trademark law commonly known as the “disparagement clause.” This clause prohibits any trademark that may disparage or “bring…into contempt or disrepute” a person (dead or alive), institutions, beliefs, or national symbols. See 15 U. S. C. §1052(a), https://www.law.cornell.edu/uscode/text/15/1052.
The Slants and PTO spent the following six years battling over this application until late June 2017, when the Supreme Court delivered the final, fatal blow to the disparagement clause. Finding the clause violates the First Amendment’s right to free speech, the Court reaffirmed that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf
Washington Redskins fans will be celebrating soon as well. In 2014, the PTO cancelled the team’s trademarks because they disparaged Native Americans, and the Redskins sued. The Fourth Circuit Court of Appeals put the case on hold, waiting for the outcome of The Slants’ lawsuit.
Questions about protecting your company name, tagline, or logo, or about the trademark application process in general? We can help! Please give us a call at (770) 383-4660 or send us an email at email@example.com.
Morgan Easley, LLC