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Supreme Court says government can't refuse disparaging trademarks

20 June 2017

In recent years, such trademarked names have come under attack as racially offensive. New Justice Neil Gorsuch didn't take part in the case because it was argued before he joined the court.

The outcome of The Slants' case will shape the resolution of the Washington Redskins' battle with the PTO.

Today's ruling will affect a trademark that has far more commercial value than The Slants-that of the National Football League team Washington Redskins. The franchise's attorney, Robert Raskopf, was present at the Supreme Court during oral arguments in January.

The case was closely watched for the impact it would have on a separate dispute involving the Redskins, who are owned by Dan Snyder.

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Some American Indian groups, however, saw a difference between The Slants and the Redskins. In contrast, only 28 percent of all of Americans agree with that statement.

But an overwhelming majority of American Indians do not consider "Redskins" a derogatory term. As such, the Redskins should be allowed to regain their trademark registration for their slur of a name. Additionally, Alito said that refusing a trademark based on someone taking offense cuts directly against the First Amendment.

But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend.

"It offends a bedrock First Amendment principle", writes Alito in the opinion.

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The court, he wrote, is cautious in extending its government-speech precedents, "for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints".

Registration of a trademark provides a nationwide defense against others who would try to use it. He says he picked his band's moniker in an effort to reclaim a stereotype. "In today's day and age, that's a fairly significant opinion that there's agreement on this".

Members of the Portland, Oregon-based Asian-American rock band The Slants (L-R) Tyler Chen, Ken Shima, Simon Tam, Joe X. Jiang pose in Portland, Oregon, U.S., August 21, 2015 in a picture released by band representatives. According to an opinion written by Justice Samuel Alito, "The disparagement clause violates the First Amendment's Free Speech Clause". "The Trademark Trial and Appeal Board's 2014 decision cancelling six Redskins trademark registrations on the basis that they are disparaging will not be able to be upheld, and the registrations should be reinstated in due course".

"So there might be some grounds of distinction there", said Mr. Blackman.

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The court's ruling begins by briefly reviewing the history of trademark law. The television show "Queer Eye for the Straight Guy" was registered by the trademark office, but "Clearly Queer" was rejected. And now. the Supreme Court has agreed with that view and has struck down 15 USC 1052 (a) as unconstitutional under the First Amendment, which makes this a big win for the First Amendment. She argued that the ruling leaves ambiguity on those counts, and she said Congress could step in and legislate to stop their registration. But actually getting that trademark has always been much more complicated.