Justices dubious about government denials of ‘derogatory’ trademarks
The Supreme Court appeared to like what they heard Wednesday from an Asian-American dance rock band’s argument that its name, The Slants, deserved federal trademark registration.
But several justices worried about an anything-goes policy that would wipe out the government’s ability to police trademarks it deems derogatory. If they find a middle ground on which to rule, it could work against other trademarks that are deemed particularly offensive.
Waiting in the wings for the high court’s decision: the Washington Redskins, whose trademarks were canceled in 2014 following complaints from Native Americans. The team’s similar challenge is pending in federal appeals court, and the Supreme Court’s decision will dictate its result.
Band leader Simon Tam originally went to court after the group was denied registration by the U.S. Patent and Trademark Office. He had chosen the name as an act of “reappropriation” — adopting a term used by others to disparage Asian Americans and wearing it as a badge of pride.
After losing in a lower court, the band won at the U.S. Court of Appeals for the Federal Circuit, which ruled 9-3 last year that “the First Amendment protects even hurtful speech.”
The Obama administration then appealed to the Supreme Court.
It didn’t take long for several justices to pounce on the government’s contention that it can pick and choose between positive and negative trademarks. “We have a culture in which we have T-shirts and logos and rock bands and so forth that are expressing a point of view,” Justice Anthony Kennedy said. “They are using the market to express views.”
“It’s a form of advertising,” Justice Stephen Breyer said.
Justice Elena Kagan said the government cannot make distinctions based on viewpoint — even if it seeks to allow positive messages and deny negative ones. “Even government programs are subject to this constraint, which is that you can’t distinguish based on the viewpoint of a speaker,” she said.
The Supreme Court has upheld negative speech in recent years, even when it involved distasteful protests at military funerals or disgusting “animal crush” videos. But last year, it allowed Texas to ban specialty license plates featuring the Confederate flag because it was considered a form of government speech.
In the case of The Slants, their attorney John Connell said: “The government is not speaking. It’s not its message. The control over the creation and design of the mark is retained at all times by the owner.”