Supreme Court skeptical on disparaging-trademarks case

Trademark for Asian-American band refused

WASHINGTON — A majority of the Supreme Court seemed highly skeptical Wednesday that the federal government can refuse to register all trademarks that may be disparaging, casting this as the government improperly taking sides in free speech disputes.

Justice Elena Kagan said that a government program that allowed only positive speech and denied negative speech would be a “fairly classic case of viewpoint discrimination,” in which the government cannot engage.

The court was considering the case of an Asian-American band called the Slants, whose founder was denied trademark registration for the group’s name.

The trademark office in 2011 said registering the trademark would violate a part of the 1946 Lanham Trademark Act that prohibits registration of a trademark that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The office said the name was likely to disparage a significant number of Asian-Americans. But founder Simon Tam said the point of the band’s name is just the opposite: an attempt to reclaim a slur and use it “as a badge of pride.”

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendment’s guarantee of free speech. The government may not “penalize private speech merely because it disapproves of the message it conveys,” a majority of the court found.

The outcome of the Supreme Court case is to likely affect the legal case of the Washington Redskins, whose trademark registration was revoked in 2014 under the same disparagement clause.

Although the comments suggested the Slants might win, the justices also seemed concerned about going too far and forcing the government to register all trademarks, with no discretion.

The hour-long oral argument was a lively affair, with justices showing how difficult it was to reconcile the law with the First Amendment and then playing devil’s advocate about their own assertions.

With Assistant Solicitor General Malcolm Stewart in the well, Justice Anthony Kennedy wondered why a negative message could not be registered as a trademark when negative or even offensive speech is eligible for copyright protection.

Justice Ruth Bader Ginsburg ventured that a band called “Slants Are Superior” would receive trademark registration because it was not disparaging, while “the Slants” would be denied. She wondered why Tam’s intent did not matter.

“You can’t say ‘slants’ because the [Patent and Trademark Office] thinks that’s a bad word,” Ginsburg said. “Does it not count at all that everyone knows that the Slants is using this term not at all to disparage, but simply to describe?”

Chief Justice John Roberts Jr. described the government’s argument as “circular.”

Justice Stephen Breyer wondered how rejecting negative trademarks advanced the goals of the government program, which is to aid consumers in identifying specific commercial interests.

At one point, Stewart compared the program to a public university dedicating a room as a place students could express their views, but without using racial epithets or speaking ill of other students.