The Slants Win Supreme Court Battle Over Band's Name In Trademark Dispute

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Members of the Asian-American rock band The Slants have the right to call themselves by a disparaging name, the Supreme Court says, in a ruling that could have broad impact on how the First Amendment is applied in other trademark cases.

The Slants' frontman, Simon Tam, filed a lawsuit after the U.S. Patent and Trademark Office kept the band from registering its name and rejected its appeal, citing the Lanham Act, which prohibits any trademark that could "disparage ... or bring ... into contemp[t] or disrepute" any "persons, living or dead," as the court states.

After a federal court agreed with Tam and his band, the Patent and Trademark Office sued to avoid being compelled to register its name as a trademark. On Monday, the Supreme Court sided with The Slants.

"The disparagement clause violates the First Amendment's Free Speech Clause," Justice Samuel Alito wrote in his opinion for the court. Contrary to the Government's contention, trademarks are private, not government speech."

The band has said it wanted to reclaim what is often seen as a slur.

"We grew up and the notion of having slanted eyes was always considered a negative thing," Tam said in January. "Kids would pull their eyes back in a slant-eyed gesture to make fun of us. ... I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead."

Attorney Lee Rowland of the American Civil Liberties Union welcomed the Supreme Court's decision:

"The government's misguided effort to protect minorities from disparagement instead hurt members of that very community by hindering their right to compete in the marketplace of ideas. Fortunately, today's opinion prevents the kind of absurd outcome that results when the government plays speech police."

The case could inform arguments over other, much larger entities than The Slants.

As NPR's Nina Totenberg has reported, "the trademark office has denied registration to a group calling itself "Abort the Republicans," and another called "Democrats Shouldn't Breed." It canceled the registration for the Washington Redskins in 2014 at the behest of some Native Americans who considered the name offensive."

In his opinion about another facet of the case, Alito wrote:

"There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social 'volatility,' free speech would be endangered."

The judgment was unanimous — with two asterisks: Justice Neil Gorsuch, who wasn't yet on the court when the case was argued in January, did not take part. And with different parts of the case drawing differing legal explanations, four opinions were written.</s>The Supreme Court chose not to consider Universal Music’s 10-year-old copyright dispute over a baby dancing to Prince’s “Let’s Go Crazy”. However, the country’s highest court did weigh in on another music-related case, this involving an Asian-American rock band called The Slants and their right to call themselves a disparaging name.

The band filed a lawsuit after the U.S. Patent and Trademark Office rejected the band’s trademark registration, citin the Lanham Act, which prohibits any trademark that could “disparage … or bring … into contemp[t] or disrepute” any “persons, living or dead,” according to NPR. The Slants say they want to reclaim the offensive slur and give it a positive connotation.

A federal court initially sided with The Slants, and today the Supreme Court did so too, unanimously, in fact. According to an opinion written by Justice Samuel Alito, “The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech.”

Beyond giving The Slants the legality to trademark their name, the Supreme Court’s ruling also has implications for several larger trademark disputes. Perhaps most notably is Washington’s NFL franchise, the Redskins, which saw their trademark registration canceled in 2014 after the U.S. Patent and Trademark Office deemed their name as “offensive.”</s>WASHINGTON (AP) – The Supreme Court says the government can’t refuse to register trademarks that are considered offensive.

The ruling Monday is a win for an Asian-American rock band called the Slants and it gives a major boost to the Washington Redskins in their separate legal fight over the team name.

The justices said part of a law that bars the government from registering disparaging trademarks violates free speech rights.

The Slants tried to trademark the name in 2011, but the U.S. Patent and Trademark Office denied the request on the ground that the name disparages Asians. A federal appeals court in Washington later said the law barring offensive trademarks is unconstitutional.

The Redskins made similar arguments after the trademark office canceled the team’s trademark in 2015.</s>The law used by the U.S. Patent and Trademark Office to prevent the Washington Redskins from registering trademarks in and relating to the word "Redskins" and the logos used by the team has been ruled unconstitutional by the U.S. Supreme Court. An opinion authored by Justice Samuel Alito states that the law precluding the registration of offensive marks, such as "Redskins," is improper under the First Amendment of the U.S. Constitution.

The Supreme Court's opinion includes the Court's position that it is "far fetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently."

That opinion came in the case of Matal, Interim Director, United States Patent and Trademark Office v. Tam, which reviewed a petition submitted by the lead singer of the rock group "The Slants" concerning the U.S. Patent and Trademark Office's denial of a trademark application for the band's name, claiming that the band's name was found to disparage a racial or ethnic group. The case is very similar to that of the Redskins, an NFL franchise that has been fighting for its own registrations in the face of the allegation that its team name and logos are disparaging to Native Americans.

In 2014, the Trademark Trial and Appeal Board revoked six federal trademark registrations belonging to the Washington Redskins, a ruling which was affirmed by a federal judge in 2015. Obviously, revocation of the federal registrations did not halt the team's use of "Redskins" since those decisions, but it did erase important protections that serve to cause many individuals and corporations to file for such protections in the first place, including but not limited to providing for favorable remedies to federal registration holders -- i.e. the right to sometimes receive an injunction against wrongful use and enhanced statutory damages.

In September 2016, the Supreme Court announced that it would hear the similar case concerning The Slants, which indirectly was a win for the Redskins franchise as it would shed light on its own pending trademark battle. The key issue was a determination surrounding the extent that the First Amendment bars content-based discrimination in the context of granting federal trademark registrations. The Supreme Court decided that the bar is quite extensive.

"The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may 'disparage . . . or bring . . . into contemp[t] or disrepute' and 'persons, living or dead.' 15 U. S. C. 1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend."

As such, it is safe to assume that the Washington Redskins will be able to take up its fight for reinstatement of its own registrations and likely succeed in its efforts.

Darren Heitner the Founder of South Florida-based HEITNER LEGAL, P.L.L.C. and Sports Agent Blog. He authored the book, How to Play the Game: What Every Sports Attorney Needs to Know.</s>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 high court involved an Asian rock band named “The Slants.” The U.S. Patent and Trademark Office originally denying the band’s name, saying it was a racial slur that violated the agency’s policy, based on federal law, that prohibits granting disparaging trademarks.

Justices, though, said that violated the First Amendment.

“Speech may not be banned on the ground that it expresses ideas that offend,” Justice Samuel A. Alito Jr. said in his opinion for the court.

The American Civil Liberties Union, which supported the band, said Monday’s ruling was a huge win for the First Amendment and prevents the government from policing speech.

“The Slants chose their name to reappropriate a racial slur used against their community, with the goal of deflating the word’s hurtful power,” said Lee Rowland, an attorney for the ACLU. “The government’s misguided effort to protect minorities from disparagement instead hurt members of that very community by hindering their right to compete in the marketplace of ideas.”

The ruling was 8-0, though four justices joined a concurring opinion. Justice Neil Gorsuch didn’t participate in the case.

Government lawyers had argued that since a federal agency ruled on trademarks, they amounted to a form of government speech. That, the lawyers said, meant the government had the right to prohibit ones deemed offensive.

The court, though, said trademarks are private speech.

“Holding that the registration of a trade-mark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way,” Justice Alito wrote.

The holding could dictate what happens with the Redskins’ case after the trademark office, at the urging of Native American groups, rejected their trademark, and the team appealed to the U.S. Court of Appeals for the 4th Circuit. The case was put on hold to await the Supreme Court’s decision in the band’s case.

The team was thrilled by the Supreme Court ruling in the trademark case, said the Redskins’ attorney Lisa Blatt.

“The Supreme Court vindicated the Team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion,” Ms. Blatt said.

“I am THRILLED! Hail to the Redskins,” Dan Snyder, owner of the Washington Redskins, said in a statement.

The Native American groups had argued that the Patent and Trademark Office had a duty to encourage racial tolerance and protect minorities from demeaning messages in commercial advertising.

But Justice Alito rejected that, saying the line between commercial and non-commercial speech is tough to spot, and the First Amendment has long protected Americans’ rights to be offensive.

“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,’ ” Justice Alito wrote.

Simon Tam, lead singer of the Slants, had suggested there was a way to uphold his trademark while not deciding on broader issues that affect the football team name.

But the court said major First Amendment issues were at stake and chose to rule broadly, striking down the “disparagement clause” in trademark law.

“I think the Redskins are going to be able to go back to the Patent and Trademark Office and say they are entitled to maintain those registrations,” said J. Michael Keyes, an intellectual property lawyer and partner at Dorsey & Whitney.

Trademark law is full of confusing cases. The television show “Queer Eye for the Straight Guy” was registered by the trademark office, but “Clearly Queer” was rejected. “Permachink” was accepted, but “chink proud” was rejected.

Mr. Keyes also said Monday’s ruling will affect disparagement clauses in state trademark laws, pointing to a provision in Washington state that mirrors the Lanham Act, which was at issue in the Slant’s case.

“That provision in our state statute is unconstitutional in light of the court’s decision,” he said.
• Andrea Noble and Nora Princiotti contributed to this article.</s>Asian-American rock group, The Slants, are free and clear to trademark their name after a Supreme Court ruling in their favor.

The Slants had attempted to trademark their controversial name back in 2011, but the U.S. Patent and Trademark Office shot them down based on the name being disparaging.

Monday, the Supreme Court said that law violates free speech, and therefore the trademark should be granted. It's a victory for the band, and potentially for the Washington Redskins ... whose trademark request was denied on the same grounds.

The Court's decision opens the door to a slew of arguably offensive language being trademarked.</s>The unanimous decision Monday will also likely preserve the trademarked and controversial name of the Redskins, Washington’s NFL team, and help the Seattle band Thunderpussy trademark its name.

WASHINGTON — The Supreme Court extended trademark protection to words and names that may be offensive, ruling Monday that the First Amendment right to free speech allows an Asian-American band from Portland, Oregon, to call itself the Slants.

The unanimous decision will also likely preserve the trademarked and controversial name of the Redskins, Washington’s NFL team, and could also help Thunderpussy, an all-female rock band in Seattle, trademark its name.

The law at issue denies federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs or national symbols.” The high court Monday struck down part of the 1946 federal law.

The justices said this provision violates “a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” said Justice Samuel Alito Jr. He said trademarks are “private speech,” not the government speaking. And as such, the law may not punish words or expressions simply because they are offensive.

“We have said time and time again that the ‘public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,’ ” Alito said in the case of Matal v. Tam.

Slants founder Simon Tam tried to trademark the band name in 2011, but the U.S. Patent and Trademark Office denied the request on the ground that it disparages Asians.

The examiner cited dictionaries that defined “slants” or “slanteyes” as a derogatory or offensive term.

The Slants said they did not intend to disparage anyone. Instead, they said, they sought to adopt and reform a disparaging term about Asians, much as some gay people have embraced the term “queer.” Tam said he chose the name to make fun of a word that had been used as a slur against Asians, and thereby to “drain” it of any derogatory impact.

Thunderpussy, an all-female rock band from Seattle, has made a similar argument about its name, saying it wanted to take ‘pussy’ off the marketplace as a pejorative term. Its trademark application also was denied, with the Patent and Trademark Office calling its name “immoral” and “scandalous,” according to the band’s attorney.

The government has applied the law inconsistently when faced with trademarks based on ethnic slurs. It has, for instance, both registered and rejected trademarks for the terms “Heeb,” “Dago,” “Injun” and “Squaw.”

Tam insisted he was not trying to be offensive, but he wanted to transform a derisive term into a statement of pride. The Redskins also contend their name honors American Indians, but the team has faced decades of legal challenges from Indian groups that say the name is racist.

Tam said the members of the Slants were “beyond humbled and thrilled” with the ruling.

“This journey has always been much bigger than our band: It’s been about the rights of all marginalized communities to determine what’s best for ourselves,” he said.

Benjamin Kerr, who represents Thunderpussy, sees the court’s decision as a win for his clients, too.

Without a trademark, Kerr said, it’s easy enough for someone to come along and rip off an artist’s name or sound. He described this action, “trademark delusion,” as being similar to knock off designer shoes.

Thunderpussy isn’t yet in the clear — Kerr still has to check in on the appeal of their trademark denial, but he feels the Slants’ win will set the groundwork for his client’s approval.

In 2015, a federal appeals court in Washington found the law’s disparagement provision unconstitutional in a case brought by the Slants. Writing for the majority in a 9-to-3 decision, Judge Kimberly Moore of the U.S. Court of Appeals for the Federal Circuit said that while some of the rejected trademarks “convey hurtful speech that harms members of oft-stigmatized communities,” the First Amendment “protects even hurtful speech.”

While the justices all agreed on the outcome, they split in their rationale. Alito rejected arguments that the government has an interest in preventing speech that is offensive to certain groups.

“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate,” Alito said in a part of his opinion joined by Chief Justice John Roberts and Justices Clarence Thomas and Stephen Breyer.

Writing separately, Justice Anthony Kennedy stressed that the ban on disparaging trademarks was a clear form of viewpoint discrimination forbidden under the First Amendment.

“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,” Kennedy said in an opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Justice Neil Gorsuch took no part in the case, which was argued before he joined the court.</s>The Supreme Court ruled Monday that a federal trademark law banning offensive names is unconstitutional, siding with a rock band whose name had been deemed racially disparaging by the U.S. Patent and Trademark Office.

In an 8-0 ruling, the court determined the law’s so-called “disparagement clause” violates the free speech clause of the First Amendment.

The case centered on Oregon-based, Asian-American band The Slants, which was denied a trademark because its name was considered offensive. The band countered that the 70-year-old law at issue violates free-speech rights — and Justice Samuel Alito, in the court’s opinion, agreed.

“The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered,” he wrote.</s>(WASHINGTON) — The Supreme Court on Monday struck down part of a law that bans offensive trademarks in a ruling that is expected to help the Washington Redskins in their legal fight over the team name.

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

The ruling is a victory for the Asian-American rock band called the Slants, but the case was closely watched for the impact it would have on the separate dispute involving the Washington football team.

Slants founder Simon Tam tried to trademark the band name in 2011, but the U.S. Patent and Trademark Office denied the request on the ground that it disparages Asians. A federal appeals court in Washington later said the law barring offensive trademarks is unconstitutional.

The Redskins made similar arguments after the trademark office ruled in 2014 that the name offends American Indians and canceled the team's trademark. A federal appeals court in Richmond put the team's case on hold while waiting for the Supreme Court to rule in the Slants case.

In his opinion for the court, Justice Samuel Alito rejected arguments that trademarks are government speech, not private speech. Alito also said trademarks are not immune from First Amendment protection as part of a government program or subsidy.

Tam insisted he was not trying to be offensive, but wanted to transform a derisive term into a statement of pride. The Redskins also contend their name honors American Indians, but the team has faced decades of legal challenges from Indian groups that say the name is racist.

Despite intense public pressure to change the name, Redskins owner Dan Snyder has refused, saying it "represents honor, respect and pride."

In the Slants case, government officials argued that the law did not infringe on free speech rights because the band was still free to use the name even without trademark protection. The same is true for the Redskins, but the team did not want to lose the legal protections that go along with a registered trademark. The protections include blocking the sale of counterfeit merchandise and working to pursue a brand development strategy.

A federal appeals court had sided with the Slants in 2015, saying First Amendment protects "even hurtful speech that harms members of oft-stigmatized communities."</s>The Supreme Court ruled that the U.S. Patent and Trademark Office had to register “offensive” and “disparaging” trademarks and that not doing so would violate free speech rights. The court ruled 8-0 in favor of The Slants, an Asian-American rock band based out of Portland, Oregon.

The Patent Office had denied their attempt to trademark their band name because it was seen as derogatory towards Asians. The Patent Office had the authority to reject the trademark under Section 2(a) of the Lanham Act which bans trademarks that “bring into contempt, or disrepute” persons living or dead.

“The disparagement clause violates the First Amendment’s Free Speech Clause,” Justice Samuel Alito wrote in his opinion for the court according to NPR. “Contrary to the Government’s contention, trademarks are private, not government speech.”

The ACLU hailed the win as a victory for free speech. “The justices unanimously agreed that The Slants’ First Amendment rights were violated when the government claimed the right to control their speech in exchange for offering a trademark. The opinion warns against government moves to ‘silence or muffle the expression of disfavored viewpoints.” Fortunately, the risk of that kind of broad censorship is much lower after today’s decision.” ACLU Senior Staff Attorney Lee Rowland wrote on their website.

The band chose the name “The Slants” intentionally in order to reclaim a word that is often a slur. “We grew up and the notion of having slanted eyes was always considered a negative thing,” band frontman Simon Tam told NPR. “Kids would pull their eyes back in a slant-eyed gesture to make fun of us … I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead.”

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One of the biggest winners of this decision is the Washington Redskins. In 2014, the Patent Office revoked the Redskins’ trademark after it was found to be offensive to Native Americans. In 2015, a judge upheld the Patent Office’s ruling. Now, the Patent Office’s original ruling is surely tossed out with the Supreme Court’s decision.

Today’s ruling may however fly in the face of public opinion, especially among Millennials. In 2015, the Pew Research Center found that 40 percent of all Millennials believed that government should be prevent the making of statements that are offensive to minority groups. In contrast, only 28 percent of all of Americans agree with that statement. Democrats and non-whites were also more likely to agree with the statement than most other Americans.

It is not popular and inoffensive speech that needs to be protected from censoring. It is often that speech which is provocative and offensive that needs legal protection. The Constitution does not contain a “hate speech” or “disparaging” exception to the First Amendment.

The Supreme Court got this right.
The Slants win their case with the Supreme Court of the United States that the U.S. Patent and Trademark Office's rejection of their trademark under the Lanham Act due to their name being "disparaging" is an unconstitutional violation of their free speech rights under the First Amendment.