Trademarks can now be as offensive as you want, Supreme Court rules

Asian-American band win top court case over offensive trademark

The band's case was brought by Simon Tam, lead singer for The Slants, who said they chose their name as an act of re-appropriation - taking a name sometimes used to disparage Asian Americans and owning it "as a badge of pride", thereby robbing a slur of its power.

In the Slants case, government officials argued that the law did not infringe on free speech rights because the band was still free to use the name even without trademark protection. In particular, the Supreme Court determined that "trademarks are private, not government speech;" and that registration of trademarks is different from government subsidies in the form of cash grants or their equivalent. In his decision, Justice Samuel Alito wrote that restricting speech that offends "strikes at the heart of the First Amendment". Even if one found the term "Redskins" offensive, the ACLU argued, "government coercion ... isn't the way to make it right". It is now under attack by social justice warriors who claim that offensive language should be banned including the name of the NFL's Washington Redskins.

Monday's decision by the US Supreme Court permitting four Chinese-American musicians to trademark their band as The Slants seems to open the door to other free speech use where some people will be offended. The Washington Redskins appealed that decision, but that decision was held in abeyance pending The Slants case.

The Slants' trademark case could also impact other controversially named groups like the Washington Redskins, which has been in jeopardy of losing its team name for being racially offensive.

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After a federal court agreed with Tam and his band, the Patent and Trademark Office sued to avoid being compelled to register its name as a trademark. In 2014, the trademark for the Washington Redskins football team was cancelled after Native Americans complained that the word "redskins" was offensive.

"After an excruciating legal battle that has spanned almost eight years, we?re beyond humbled and thrilled to have won this case at the Supreme Court", Tam said in a statement on social media after the ruling.

Brian Cladoosby, president of the National Congress of American Indians, said the name "does not honor Native Americans, it honors those who committed genocide against Native Americans". The same is true for the Redskins, but the team did not want to lose the legal protections that go along with a registered trademark. This week, the high court finally settled the (many) years old question as to whether the federal ban on offensive trademarks violates the First Amendment, holding that it does.

"Nothing in the opinion undermines the decisions of the TTAB or the District Court that the term "redskin" disparages Native Americans", the group said in a written statement. The government has in the past rejected trademarks for the terms "Heeb" and "Injun", but allowed those for companies such as Baked By A Negro bakery products, Midget Man condoms, and Dago Swagg clothing.

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