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June 19, 2017

Supreme Court Says It's OK to Use Disparaging Terms in Trademarks

WASHINGTON, D.C.—For years, political comic Lenny Bruce did a routine at clubs where he would rapidly repeat a disparaging racial or ethnic term dozens of times in an attempt to deprive the term of its hurtful meaning. More recently, sex worker rights groups have increased their use of the word "whore" to describe themselves, in an effort, they said, to take back the term from those who use it as an insult aimed at sexually active women. And now, with the release of the U.S. Supreme Court's decision today in Matal v. Tam (previously Lee v. Tam), the Asian-American band The Slants have won their lawsuit against the U.S. Patent and Trademark Office (USPTO), which had denied a trademark for the band's name because "slant" is a common derogatory term for "Asian" and the office had a rule against awarding official recognition to such terms for trademark purposes—even though several such trademarks already exist. "We now hold that this provision violates the Free Speech Clause of the First Amendment," wrote Justice Samuel Alito for a unanimous Court (though new Justice Neil Gorsuch took no part in the Opinion). "It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend." In coming to its conclusion, the Court made several other related findings that will likely spark other legal battles. For one thing, the Court concluded that trademarks are not "government speech," even though it is a government agency that gives official/legal status to the mark, and that awarding that official status is tantamount to the government "subsidizing" the mark, even though individuals and companies pay the government for the status, not the other way around. At issue was the portion of the 1946 Lanham Act—the primary legislation establishing the government's ability to officially recognize trademarks—which states, "No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." [Emphasis added] What the Court decided was that that exception to the Act amounted to viewpoint discrimination based on the fact that the speech for which trademark protection was being sought was considered "unpopular." Or in the words of Justice Anthony Kennedy, who wrote a concurring opinion in the case, joined by the Court's liberal wing, "Giving offense is a viewpoint. We have said time and again that 'the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,'" citing Street v. New York, though Kennedy also referenced Hustler Magazine, Inc. v. Falwell, where the late evangelist sued the magazine for defamation—and lost. While today's decision is a big win for band leader Simon Tam, it'll be an even bigger win for the owners of the Washington Redskins football team, for which name the USPTO withdrew trademark protection three years ago, citing the very provision of the Lanham Act which the Court just struck down. That mark is worth millions, and the team's owners have been in court ever since, trying to get that trademark office decision overturned. Now, it looks as if they'll succeed easily. But an even bigger question is what this will mean for the adult entertainment industry, some segments of which certainly have no problem expressing ideas that "are themselves offensive to some of their hearers." And while it's clear that nobody will be trademarking the words "pussy" or "cock" or similar generic descriptions, the Tam decision could open the door for many inventive trademarks that incorporate what some would consider "offensive" terms. "Good decision from the Supremes on trademarks today," said prominent First Amendment and trademark attorney Allan B. Gelbard. "The government can’t deny trademark registration to 'disparaging' or 'insulting' marks without violating the First Amendment. While they did not explicitly state the 'immoral' refusal language was also unconstitutional, the identical reasoning and underlying principals would require the same result. Baby steps …"

 
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