Recently, an all Asian-American band called The Slants made headlines because the United States Patent and Trademark Office “USPTO” denied their application for a trademark on grounds that their name was a racially disparaging term. Trademark registration is considered “government speech,” and thus is regulated.
Although American citizens have freedom of speech, and the right to exercise that privilege, the government cannot sanction disparaging language. In other words, although a band can call themselves The Slants, and more generally, anyone can use any “trademark” or name they like regardless of how disparaging it may be, the government cannot register an offensive trademark. The so-called disparagement provision of Section 2(a) of the Lanham Act prohibits registration of marks that “may disparage” any person or group.
The Slants are a Portland, Oregon based rock band founded by musician Simon Shiao Tam. Tam states that, as an Asian-American, he named the band in an effort to reclaim power from a racial slur that had been used against him his entire life. According to Tam, the band’s name also refers to “guitar slants” and the band members’ unique slant on life.
Enforcement of the Lanham Act is Unconstitutional
After the USPTO denied the application pursuant to the disparagement provision, Tam filed suit. The matter is currently pending before the United States Supreme Court. Before the case made its way to the Supreme Court, a Federal Circuit Court of Appeals determined that the disparagement provision of the Lanham Act is unconstitutional. The Circuit judges noted that regardless of their personal feelings about the trademark at issue, or any other disparaging marks, the First Amendment forbids government regulators to deny registration on grounds that it finds the speech likely to offend others. The Court went so far as to note that Tam’s role as a musician is to weigh in on cultural and political discussions about race and society that are “within the heartland” of speech protected by the First Amendment. The issue currently before the United States Supreme Court on appeal is whether the disparagement provision is facially invalid under the Free Speech Clause of the First Amendment.
A number of so-called interested parties have filed amicus briefs in this case. One brief, submitted to the Court by the Cato Institute, takes issue with the fact that the government should not get to decide what is or is not a racial slur.
One related case that may be instructive involves the registration of the NFL team named the Redskins. A District Court upheld the cancelation of the Redskins trademark on grounds that it may disparage Native Americans. The Court noted that because trademark registration is “government speech,” it is exempt from First Amendment scrutiny.
Philadelphia Trademark Lawyers at Sidkoff, Pincus & Green, P.C. Have Extensive Experience Litigating Trademarks
If you have questions about registering a trademark or protecting an existing mark, the Philadelphia intellectual property lawyers at Sidkoff, Pincus & Green can help. We have decades of combined experience in intellectual property law. With offices conveniently located in Philadelphia, we serve clients throughout Pennsylvania and South Jersey. Schedule a consultation today by calling us at 215-574-0600 or by completing our online contact form.