SCOTUS just made a landmark trademarking decision

equal opportunity

In a major decision that could affect people on all ends of the political spectrum, the U.S. Supreme Court ruled that it was unconstitutional for the U.S. Patent and Trademark Office to reject trademarks that “disparage” others.”

The case upended a 1946 law called the Lanham Act, which gave the patent office the right to turn down trademarks that “may disparage… persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute.”

At the expense of others

In a unanimous decision issued on Monday, SCOTUS ruled that rejecting such disparaging patents was a violation of the First Amendment right to free speech. In an opinion written by Justice Alito, the court said that “Speech may not be banned on the ground that it expresses ideas that offend.”

While the Redskins were not involved in the Supreme Court case, the fate of that Washington football team was dependent on its outcome.

After decades of using the name, much reviled by many Native American groups, the team had their trademark cancelled in 2014. Their case will be tried in the U.S. Court of Appeals for the fourth circuit in Richmond, and they expect to win after SCOTUS’ decision this week.
Said Redskins owner Daniel Snyder, “I am THRILLED. Hail to the Redskins.”

Some unlikely bedfellows are celebrating the case

Interestingly, the Supreme Court case was not filed by people offended by a racist trademark, but rather, by members of an ethnic minority hoping to reclaim a slur. In 2011, an Asian American rock band called The Slants had their trademark rejected.
While members of The Slants themselves are offended by the Redskins’ team name, they nonetheless agree that the Lanham Act gave the government too much power to curb free speech.

Said Simon Tam of The Slants, “This journey has always been much bigger than our band: it’s been about the rights of marginalized communities to determine what’s best for ourselves.”

Unfortunately, racist and offensive trademarks will not always come from self-determining groups of minorities hoping to reclaim. Some nasty names are likely to emerge from truly hateful groups.
New York intellectual property lawyer Lisa Simpson warned that “this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful remarks.”

The outcome

Nonetheless, SCOTUS judges unanimously agreed that allowing a government office to block potentially offensive names would be a violation of the First Amendment. In a separate opinion, Justice Kennedy wrote that “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.”

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