By: Maya Day
This past week, the Asian-American band “The Slants” were victorious in their Supreme Court case to trademark their band's name. The Supreme Court ruled that rejecting a ''[trademark application because it is disparaging is unconstitutional. Associate Justice, Samuel Alito, held that a Landham Act provision against offensive trademarks is a violation of the First Amendment. He explained, “[s]peech may not be banned because it expresses ideas that offend.”
The dictionary defines Slant as many things: to veer or angle away, to cause to slope, and to distort. In addition to these definitions, it states slant, when used as a noun, can be an extremely disparaging and offensive term used to refer to a person from East Asia, especially a Chinese or Japanese person. Simon Ta, the Asian- American front-man for The Slants who attempted to register his band’s name, says he chose the Band’s name as a way of reclaiming this negative stereotype. Simon’s initial trademark application was denied. He filed a lawsuit which prevailed at the United States Court of Appeals for the Federal Circuit in December 2015.
In this case, Associate Justice Alito, rejected the notion that trademarks are a representation of the government’s viewpoint; using ‘Just Do It’ (Nike), ‘Have it Your Way’ (Burger King), and ‘Think Different’ (Apple) as examples of other registered trademarks being used that do not signify governmental approval. Ultimately, he expressed that the Lanham Act’s disparagement clause is far too broad. The line between commercial and noncommercial speech is not always clear and if labeling something as commercial allows speech to be suppressed, it could serve as a threat to the freedom of speech. All Justices agreed with the main finding of the case. Justice Kennedy added in his concurring opinion that a ban on disparaging trademarks is “viewpoint discrimination” but refusal on other grounds should be adhered to. He wrote “The First Amendment does not entrust the power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”
As I read this story and the Supreme Court ruling, many pros and cons appear apparent. This decision allows trademark applicants such as The Slants, to apply for registration without fear of rejection based on interpretation. It allows for individual such as Simon Ta to reclaim once negative words, and possibly, use them to combat their stereotype. However, from a social justice lens, it also allows the freedom to use these words in a harmful way. Without having to provide an explanation of the trademark name, applicants in hate groups could be allowed the registration of names used to promote discrimination against a specific group. This ruling is a step in the right direction for freedom of speech, but at what cost is it to individuals who are effected by the meaning of these marks?
By: Kandyce Hall
The Supreme Court’s recent decision in Matal v. Tam, in which the Court found denying trademark registration of disparaging marks unconstitutional, has left many to wonder if the decision has opened the floodgates to allow all offense marks to receive federal registration. In Tam the Court found the government violated the applicant’s freedom of speech when his application was denied based on mark disparagement under section 2(a) of the Lanham Act. However while the Court spoke directly to the issue of disparaging marks it was silent on the issue of other offensive marks that have traditionally been denied registration as well under the Lanham Act. For instance, under section 2(a) of the Lanham Act trademark registration may be denied if the mark is found to be immoral or scandalous, but, neither issue was addressed directly in the Court’s opinion. While trademark registration can no longer be denied solely based on claims of disparagement there are still a host of other registrability issues a mark may fall under that could prevent its registration such as 2(d) likelihood or confusion and 2(e)(1) descriptiveness.
The Court’s decision was a victory for Mr. Tam and his band as well as for fellow applicants whose trademark registration had been denied or cancelled based on mark disparagement. The Redskins, a NFL team’s trademark registration, had previously been cancelled after an opposer brought claims of mark disparagement. The fate of the Redskin’s mark is looking brighter with the outcome of the Tam decision. But, only time will tell whether marks that fall under the category of immoral or scandalous share the same fate as Tam.
Link: Matal v. Tam https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf