Justices say law on offensive trademarks is unconstitutional

Posted June 20, 2017

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. After also losing in lower court, the U.S. Court of Appeals for the federal circuit in Washington ruled 9-3 past year that the law barring offensive trademarks is unconstitutional.

Slants founder Simon Tam said his goal was to reclaim a derisive slur and transform it into a badge of ethnic pride. The court decided the ban on registering "scandalous, immoral, or disparaging remarks" violated the First Amendment.

The Supreme Court struck down part of a federal law that denies trademark protection of terms that disparage living or dead.

"The disparagement clause violates the First Amendment's Free Speech Clause", Justice Samuel Alito wrote in his opinion for the court.

"Holding that the registration of a trademark converts the mark into government speech would constitute a huge and risky extension of the government-speech doctrine, for other systems of government registration [such as copyright] could easily be characterized in the same way", Justice Samuel Alito wrote in the majority opinion. That case, before a federal appeals court in Richmond, had been on hold while the Supreme Court considered the Slants case.

The Government has an interest in preventing speech expressing ideas that offend.

When NPR asked Tam in January how he felt about Synder potentially benefiting from his lawsuit, he said, "We've been so obsessed with punishing villains like Dan Snyder, we don't realize that there is this impact on bystanders.

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The president called an earlier, similar lawsuit about the emoluments issue "without merit, totally without merit". Furthermore, it prohibits the president from accepting gifts or emoluments from state governments.

It canceled the registration for the Washington Redskins in 2014 at the behest of some Native Americans who considered the name offensive". Snyder issued a quick response to the decision on Monday: "I am THRILLED".

"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", Blatt said.

But when the litigation of the word "redskins" is left to a group like the PTO, the resulting decisions will always say more about that body's own biases than anything else.

Justice Neil Gorsuch joined the court after arguments were heard in the case and did not participate in Monday's decision.

Critics of the law said the trademark office has been wildly inconsistent over the years in deciding what terms are too offensive to warrant trademark protection.

In June 2014, the United States Patent and Trademark Office canceled six federal trademark registrations for the Redskins, saying the nickname is "disparaging to Native Americans" and can not be trademarked under federal law that prohibits trademark protection on offensive or disparaging language.