Those of fiendish or mischievous mind will have an easier time registering trademarks after the Supreme Court on Monday made a decision to reject a rule against disparaging ones on constitutional grounds.
The Slants' frontman Simon Tam and his three Portland, Oregon-based bandmates are Asian-Americans who say they chose the name to re-appropriate the racial slur, and strip it of its hateful meaning. The Slants had been denied trademark protection for their name under the Lanham Act. The football team's legal challenge, now on hold in a Virginia appeals court, will likely be bolstered by the ruling in Tam, since the Redskins' lawyers could argue that any effort to permanently revoke the emblem would amount to government censorship.
In his opinion for the court, Justice Samuel Alito rejected arguments that trademarks are government speech, not private speech.
The U.S. Supreme Court ruled that a law forbidding registration of offensive trademarks was unconstitutional on Monday.
"The First Amendment's viewpoint neutrality principle protects more than the right to identify with a particular side".
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Slants founder and bass player Simon Shiao Tam says his band's name was created to reclaim a term that has been an anti-Asian slur. Some were thrown out for omitting zip codes, using cursive writing instead of print, or writing in the current date instead of a birth date, they said, disenfranchising thousands of voters in recent elections, especially minorities.
Dorsey & Whitney partner Keyes meanwhile mentioned the possibility that Monday's ruling will flood the PTO with trademark applications "containing all sorts of offensive or otherwise disparaging words, names, and symbols".
During oral argument in January, several justices said provocative names are chosen by individuals and organizations to express their views or as advertising.
Justices Anthony Kennedy and Clarence Thomas wrote separately, agreeing with much of Alito's reasoning but not all of it. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Kennedy's opinion. The team celebrated the Supreme Court's ruling in a statement Monday morning.
The Redskins' attorney issued a statement (via the Washington Times) in response to the ruling, saying, in part, "The Team is thrilled with today's unanimous decision as it resolves the Redskins' long-standing dispute with the government". Organizer Simon Tam said the name is intended "to take on stereotypes that people have about us, like the slanted eyes, and own them".
Citing trademarks registered by Sony, Apple, Nike, and Burger King, Breyer asks "what does the Government have in mind when it advises Americans to "make.believe, ' "Think different, ' 'Just do it, ' or 'Have it your way"?" The team's case remains before the Fourth Circuit Court of Appeals. "It should now follow that their trademark also should not have been invalidated". Even if the team lost the trademark protections, it wouldn't be forced to drop the name.