When the U.S. Supreme Court this week gave a green light to a rock band composed of Asian-American musicians that wanted to use the name “The Slants,” it struck down a portion of the 71-year-old Lanham Act that bars disparaging trademarks.
For the owners of the NFL’s Washington Redskins, it brought new hope. They have already filed to establish the case as controlling precedent in their battle to reinstate their trademark, which was suspended as racially offensive toward Native Americans.
And they aren’t the only ones.
Trademark applications for Fuct, Marriage Is for Fags, Christian Prostitute, N.I.G.G.A. (Naturally Intelligent God-Given Africans) and How to Avoid the Islamization of America — all virtually certain to offend some portion of the populace — also gained ground.
“Last year, the U.S. Patent and Trademark Office commissioner issued a directive that all new applications denied solely based on Section 2(a) of the Lanham Act be suspended,” noted Jennifer Ko Craft, a trademark specialist and partner at Dickinson Wright in Las Vegas.
“That means not only will the decision in In re Tam help applicants who have been denied registration based on disparagement, but also applicants who have been denied registration based on their mark being immoral or scandalous, depending on what the Federal Circuit decides in In re Brunetti” she said.
In other words, no matter how rude, lewd or offensive they seem, these applications are likely to be approved thanks to the justices’ clear statement that free speech guaranteed by the First Amendment of the Constitution trumps any government concerns about what might be offensive.
“While as an Asian-American I find the term Slants disparaging and offensive, neither the USPTO nor my personal opinion should have the power to deny the rock band’s registration on that basis,” Craft said.
“The principle behind trademark law is to protect the public from confusion, not censor them, and this provision of the Lanham Act does just that,” she said.
“I have personally been called slant-eyed so this is a particularly bitter pill to swallow, but I believe the Supreme Court got it right and the band should be not be denied registration.”
The ruling brought relief for attorney John R. Sommer of Irvine, California, who has been battling for six years to win a trademark for artist and streetwear fashion icon Erik Brunetti’s brand Fuct.
“Could you imagine the implications if the ruling had come down the other way?” Sommer said. “It wouldn’t be just the federal government that could would take sides in political disputes, it would be states and municipalities, too, that could punish organizations and views that they think are offensive. Imagine the chaos that would cause,” he said.
Attorneys said it’s likely there will be an uptick in trademark applications and some re-applications, even from cases that were abandoned.
“I have a local entertainer and entrepreneur who has been trying to register Get Rich … F*** Trying,” Craft said. “We could not overcome the Section 2(a), immoral or scandalous objection, but we may re-file given the new decision.”
Sommer said it is significant that the ruling was driven by the First Amendment, not changes in public attitude.
“It was based on the law, not the flavor of the day, and that avoids confusion,” he said.
One problem with letting public attitudes determine whether a trademark application is “scandalous,” “immoral” or “derogatory” is that the landscape shifts.
“Consider that back in the 1920s, both ‘n—–’ and ‘nigga’ were registered. Today negro or colored person aren’t preferred terms, but are you going to refuse to register the National Association for the Advancement of Colored People, or the United Negro College Fund when these are reputable, positive organizations, just because their names include words not currently in favor? It could get a little crazy, if the federal government, or state and local governments, could deny licenses or permits based upon what those governments currently think is politically correct,” Sommer said.
“That’s why we have a First Amendment.”