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Supreme Court Ruling Says Trademark Law Barring Offensive Names Infringes on Free Speech


You have likely never heard of Asian American rock band the Slants, but a court ruling in their favor could have significant implications for an NFL team you have heard of--the Washington Redskins.

In 2011, the Slants founder, Simon Tam, attempted to trademark his band's name, but the US Patent and Trademark Office denied his request under a 71-year-old trademark law that prohibits trademarks from being issued for offensive names. The Office said the name "the Slants" was disparaging to Asians. Tam, himself of Asian descent, said that he was not trying to be offensive or disparaging, but rather attempting to "transform a derisive statement into a statement of pride."

In 2015, a federal appeals court sided with Tam and the Slants, saying that the First Amendment protects “even hurtful speech that harms members of oft-stigmatized communities.” Thus, the appeals court ruled, the US Patent and Trademark Office rule against issuing trademarks to offensive names was unconstitutional.

The government appealed that decision to the Supreme Court, who sided with the lower court and ruled Monday that the law barring offensive trademarks infringes on free speech.

Justice Samuel Alito said in the majority opinion that trademarks are not immune from First Amendment protection, even though they are part of a government program or subsidy. He rejected the Patent Office's claims that trademarks are government speech rather than private speech.

The government had argued that they were not infringing on the band's right to free speech, because the Slants were still allowed to use the name--it just would not receive the legal protections afforded to a trademark.

The Washington Redskins are likely to be eyeing this decision very carefully. In 2014, the US Patent and Trademark Office canceled the team's trademark, saying the term "Redskins" was offensive to Native Americans. Dan Snyder, owner of the Washington Redskins, says the team's name is not offensive, but rather "represents honor, respect, and pride." He has refused to cave into pressure to change the name of the team, and the Supreme Court's ruling in the Slants case should allow him fuel to get the team name trademarked again.The protections of a trademark will help block the sale of counterfeit merchandise and would help the team in developing its brand. 

It will be interesting to see how the Supreme Court's decision regarding trademarks and first amendment protections plays out in sports and other areas as well.

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