The Slants win Supreme Court battle over band's name in trademark dispute

Jackie Newman
June 21, 2017

The Supreme Court on Monday struck down a decades-old law allowing trademarks to be denied on the basis that they are "scandalous, immoral or disparaging". Patent and Trademark Office (USPTO) to deny registration of any trademark that it decides is disparaging to a substantial number of people. The court utterly rejected this posture, deeming it inimical to a free society and untenable under the U.S. Constitution. Therefore, the high court held that the Lanham Act's disparagement clause violates the free speech clause of the First Amendment.

Most troubling with Alito's written opinion was the comment that the federal government "has an interest in preventing speech expressing ideas that offend". Even if one found the term "Redskins" offensive, the ACLU argued, "government coercion ... isn't the way to make it right". As Carter pointed out, "The Redskins are a historic, an endemic brand, a presence" in the Washington area, and neither their name nor their lack of recent playoff success has hurt their popularity.

"The Washington Redskins will now enjoy the benefit of using "®" in connection with the team's name, thanks to the U.S. Supreme Court and a little known band called The Slants. In 2014, the trademark for the Washington Redskins football team was cancelled after Native Americans complained that the word "redskins" was offensive.

Tam has said he chose to call the band The Slants to reclaim a term some consider a derogatory reference to Asian people's eyes, and wear it as a "badge of pride". It was dedicated, Tam said, to the U.S. Patent and Trademark Office.

The ruling guarantees the Redskins will win their fight to keep their trademark.

"Government officials can not be trusted to "neutrally" identify speech that disparages", wrote syndicated columnist George Will in a January 2017 column. Supporters of the name said it was meant to honor, not disparage, while opponents said the moniker was demeaning to the Native Americans in the community.

Even after the trademark office's ruling, the team would still have been able to use the name - it just would not have had trademark protection, meaning anyone could have sold merchandise using the name.

The head of an Ohio American Indian group says a Supreme Court decision to strike down the disparagement clause in trademark law won't affect efforts to get the Cleveland Indians to change their Chief Wahoo logo and nickname.

The council also noted studies that have shown the use of offensive terms such as "Redskins" as part of a school's mascot, name or symbol has a detrimental effect on Native American students attending those educational institutions. Alito also said trademarks are not immune from First Amendment protection as part of a government program or subsidy.

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