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Supreme Court Says Disparaging Trademark Names Are Protected

20 June 2017

The government cannot censor trademarks on the grounds they may be offensive to some, the Supreme Court ruled Monday in a major decision that could also clear the way for the Washington Redskins football team to maintain its trademarks.

The case before the Supreme Court involved a musician, Simon Tam, who was denied trademark registration for the name of his band, The Slants, under the Lanham Act.

The Supreme Court declared on Monday that it is unconstitutional for the federal government to refuse to register trademarks that can be considered offensive, according to Politico.

The case has drawn intense interest as it focused on the rights of free speech enshrined in the First Amendment of the USA constitution, at a time of heightened racial tensions in the country.

The Supreme Court actually declined to hear the appeal of the Patent & Trademark Office decision to cancel federal protection of the Redskins name, but that was because a lower court had yet to rule, so it was more about the timing of the filing, which the court signaled was premature.

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

"Not only do trademarks function only minimally as a vehicle for expression, but trademark registration also involves the necessary participation of the government in approving that registration, which confers relaxed First Amendment review even when combined with the speech of a private party", the Obama lawyers said. It essentially kills any formal drive to legally pressure the team into changing its name. Alito rejected arguments that the government has an interest in preventing speech that is offensive to certain groups.

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Tam said the band was "beyond humbled and thrilled" with the ruling. Snyder issued a quick statement after Monday's decision: "I am THRILLED".

The PTO canceled the "Redskins" trademark in 2014, claiming the team name and logo are disparaging to Native Americans.

In June 2014, the United States Patent and Trademark Office canceled six federal trademark registrations for the Redskins, saying the nickname is "disparaging to Native Americans" and can not be trademarked under federal law that prohibits trademark protection on offensive or disparaging language.

Lisa Simpson, an intellectual property expert, characterized the Supreme Court's decision as a slippery slope.

Justice Neil Gorsuch took no part in the case, which was argued before he joined the court.

Critics of the law said the trademark office has been wildly inconsistent over the years in deciding what terms are too offensive to warrant trademark protection. And the idea that our market will be flooded by people who just want to register marks on a whim is ridiculous. people have to have an established business goal, pay the fees, go through the paperwork and have their information in public.

Supreme Court Says Disparaging Trademark Names Are Protected