- Can I Trademark F*** You?
- June 24, 2017
Have you ever heard of "The Slants?" Well, not many people have, but no matter, for they are an Oregon Asian-American rock band who wanted to trademark the name "The Slants." In a unanimous 8-0 decision, the Supreme Court of the United States (SCOTUS) ruled Monday that a federal trademark law banning offensive names is unconstitutional, ruling in favor of the band. Previously, the name had been considered offensive and "disparaging", therefore, not protected by the U.S. Patent and Trademark Office.
The SCOTUS determined the law’s “disparagement clause” violated the First Amendment, specifically, free speech. The history of the case flows from the band was flatly denied a trademark because its name was considered offensive. The Slants felt that the law violated its right to free speech. Justice Samuel Alito, writing for the Court, agreed and wrote, "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,” The Court felt that the protection was too broad and sweeping
Does anyone remember what happened to the NFL's Washington Redskins in 2014? Its trademark protection was cancelled because the term "Redskins" was considered disparaging to Native Americans. If you're Daniel Synder (Redskins' owner), this recent ruling has tremendous upside.
The ultimate irony is the founder of The Slants, Simon Tam, stated that his focus was to take a racist term and turn it into a badge of honor and pride.
Where does it end? I think the answer can be found in the fact that the ruling was a unanimous decision, and that the Court suggested a much more defined and tailored law is necessary in order to accomplish its objective goals.