The U.S. Supreme Court has been a strong and vigorous protector of free speech. Thus, its recent decision striking down the Lanham Act’s disparagement clause as “offending a bedrock First Amendment principle,” while welcome, is not surprising. In that case, Matal v. Tam (decided June 19, 2017), the court unanimously held in an opinion by Justice Alito, that trademark protection could not be denied for the name of an Asian-American rock group, “The Slants,” even though the group acknowledged that the name is a derogatory term for persons of Asian descent.
In the Patent and Copyright Office, the trademark application of the group’s lead singer, Simon Tam, collided with federal law that allowed a trademark application to be denied if the mark 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.” (15 U.S.C. §1052(a)). Finding that the name, “The Slants,” fell within that description, that office denied the application. The en banc U.S. Court of Appeals for the Federal Circuit, however, found the disparagement clause facially unconstitutional—a holding that the Supreme Court affirmed.
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