In Ruling That May Impact ‘Redskins’ Controversy, SCOTUS Won’t Ban Offensive Trademark


Trademarks cannot be banned purely because they are offensive, the Supreme Court said Monday in a ruling that could impact one of the National Football League’s biggest controversies.

Banning an offensive trademark “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.

The case involved an Asian-American band called The Slants, which was denied a trademark because its name was considered offensive. The band sued, saying its free speech rights were violated.

The Supreme Court agreed. Alito wrote that “The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates.”

“If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered,” he added.

The ruling could impact a controversy over the name of the NFL’s Washington Redskins. The trademark office canceled the team’s trademarks in 2014 after ruling that using the team name “Redskins” is disparaging to Native Americans.

“The case also has obvious implications for the similar dispute involving the Washington Redskins, who had their trademark canceled under the same statute and theory that the justices invalidated today,” said CNN legal analyst Steve Vladeck, a professor at the University of Texas School of law. “It should now follow that their trademark also should not have been invalidated.”

The Redskins had filed a brief supporting The Slants in their lawsuit.

The Lanham Act, which was used to deny the band’s trademark, prohibits registration of trademarks that “may disparage … persons, living or dead, institutions, beliefs or national symbols.”

However, Simon Tam, founder of The Slants, said he sought to redeem an ethnic slur and make it a symbol of ethnic pride. The trademark office had disagreed.

In the Supreme Court’s ruling, Alito said the government “has an interest in preventing speech expressing ideas that offend.”

However, the law in question was too broad, he ruled.

“The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted,” he wrote.

Alito added that “Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way,.”

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 Via: SupremeCourt of the United States  Source(s): USA Today, CNN, and Fox News