'Disparaging' trademarks could be a violation of the First Amendment

An all Asian American rock band, The Slants, are heading to the US Supreme court to fight to retain their band’s name.

The band was refused a trademark registration on the grounds that the name was too offensive. The rockers chose the name to re-appropriate an anti-Asian slur.

In Lee v Tam, No. 15-1293, the group will claim that the First Amendment to the US Constitution does not allow the government to try to “protect” American citizens from being offended and that the USPTO’s ban on ‘disparaging’ trademarks is a violation of the amendment.

The Slant’s application for their name to be approved was rejected an umber of times for violating the Lanham Act. The trademark office cited UrbanDictionary.com as evidence that the term was derogatory.

“We are pleased that this matter will be reviewed by the Supreme Court of the United States, and look forward to the vindication of the First Amendment rights of Mr. [Simon] Tam and the other members of the Slants,” the Slants’ law firm Archer & Greiner said in a statement.

“We strongly believe that [this case] ‘In re Tam’ raises important legal and public policy-related free speech issues that warrant the Supreme Court’s affirmation.”

In December 2015, the US Court of Appeals for the Federal Circuit sided with The Slants’ case, agreeing that the US Patent and Trademark Office and Department of Justice violated the band’s First Amendment rights.

In April 2016, the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office petitioned the Supreme Court to hear the case.

The Slants’ hearing will take place on 18 January.

The NFL Football team, the Washington Redskins, lost the trademark to their name due to its derogatory connotations. “The [Redskins] tried to hijack our case, arguing that they would be better advocates for the case and wanted to consolidate the two, but the court rejected them,” Tam said in a statement. “So moving forward, it is just about our case. And while the result may certainly affect or influence the Redskins’ case, there’s no guarantee that our victory would guarantee them one as well.”



 

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