First Amendment protects offensive trademarks
Decision boosts rock band, football team
The Supreme Court ruled Monday that even trademarks considered to be derogatory deserve First Amendment protection.
The decision was a victory for an Asian-American dance rock band dubbed The Slants — and, in all likelihood, for the Washington Redskins, whose trademarks were canceled in 2014 following complaints from Native Americans.
While defending the First Amendment’s freedom of speech protection, the justices did not remove all discretion from the U.S. Patent and Trademark Office. But they raised the bar for trademark denials so that names deemed to be offensive can survive.
“It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” Justice Samuel Alito wrote for a unanimous court. He rejected the government’s argument that protected trademarks become a form of government, rather than private, speech.
“If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently,” Alito said. “It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.”
The nation’s capital has been captivated for years with the battle over the Redskins’ name, but the high court had left the football team’s case pending at a federal appeals court in order to hear the challenge brought by band leader Simon Tam and his Portland, Ore.-based foursome.
In a statement, Tam said the ruling vindicated First Amendment rights for “all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination.”
In an interview with USA TODAY in January, Tam, 36, said freedom of expression is particularly needed “with those you disagree with the most.” He added: “Satire, humor, wit and irony — those are the things that will truly neuter malice.”
Lisa Blatt, the lawyer representing Washington’s football team, said the decision “resolves the Redskins’ long-standing dispute with the government.”
“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or canceling a trademark registration based on the government’s opinion,” Blatt said.
During oral argument in January, several justices said provocative names are chosen by individuals and organizations to express their views or as advertising. Denying trademark registration, they said, was a form of viewpoint discrimination.