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Offensive Terms Are No Longer Exempt From Trademark Protection

A Supreme Court ruling affirms a reclaimed slur

When The Slants filed for trademark protection, they got more than they bargained for. (Gage Skidmore/Wikimedia Commons )
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Filing for trademark protection for a word, phrase or symbol is simple enough. But actually getting that trademark has always been much more complicated. Not only must the U.S. Patent and Trademark office decide whether your mark is worthy of protection, but until today, it had the power to turn down your application if it decided your phrase, word or symbol was derogatory. Not anymore, reports The Washington Post’s Robert Barnes: Today, the Supreme Court ruled that a 71-year-old "disparagement clause" of the federal law governing trademarks violates the First Amendment.

The Supreme Court, which heard oral arguments on Matal v. Tam in January, was unanimous in its opinion, finding the law in violation of the right to free speech guaranteed by the Constitution. In the opinion delivered by Justice Samuel Alito, he writes current trademark law “strikes at the heart of the First Amendment” by instructing the U.S. Patent and Trademark Office to turn down applications for trademarks that contain slurs and other speech that could be considered offensive.

It all started when The Slants, a rock band from Portland, Oregon, filed for a trademark to protect the name of their increasingly popular band in 2010. Their application was rejected on the grounds that the name—an ironic invocation of a racist slur—was disparaging to Asian-Americans. “I took a moment,” Simon Tam, who fronts the band, told the New York Times’ Sarah Jeong. “Then I said, ‘Well, do they know we’re of Asian descent?’” Tam decided to contest the ruling as part of his ongoing attempt to flip a hateful label on its head.

As Tam’s lawsuit worked its way up the courts, it came up against the Lanham Act. Also known as ​the Trademark Act of 1946, the legislation prohibits trademarks from disparaging people, institutions, beliefs or national symbols or bringing them into “contempt, or disrepute.”

The law has been invoked in other trademark denials, as when the group Dykes on Bikes—a lesbian motorcycle club—was denied a trademark because of its “vulgar” name. However, reports the Bay Area News Group’s Sophia Kazmi, the decision was reversed when the group convinced the U.S. Patent and Trademark Office that “dyke” is no longer seen as derogatory. Later, Dykes on Bikes withstood a legal campaign to have the trademark dismissed after accusations that it was “scandalous and immoral” and excluded men.

The decision was celebrated by the American Civil Liberties Union, which wrote that turning down The Slants’ application “was censorship, pure and simple.” And another group is celebrating: the Washington Redskins. The Supreme Court opinion is likely to impact the future of the team’s fortunes—and name. The football team has been locked in multi-year litigation over six trademarks associated with the team that were canceled after the USPTO called them disparaging to Native Americans. As Jenny Vrentas reports for Sports Illustrated, the issue of the Redskins’ name among Native Americans is a complex and fraught one. Unlike The Slants or Dykes on Bikes, the name wasn't created as an attempt by a community to reclaim an offensive term.

By doing away with the disparagement clause, the Court (minus Justice Neil Gorsuch, who was not yet on the Supreme Court when arguments were heard) has ruled that intent no longer matters when it comes to trademark protection. But, writes Barnes, detractors argue that it has opened the door for protecting hateful or insulting speech. As Merriam-Webster lexicographer Kory Stamper writes, “Slur reclamation is risky business for both the oppressed, the oppressor, and the lexicographer.”

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