Tag: supreme court

Redskins Offensive Trademark

REDSKINS TIME OUT AT FEDERAL APPEALS COURT

A federal appeals court has postponed hearing arguments as to whether the trademark REDSKINS is offensive.
Both the team and the federal government agreed the case should be put on hold until the U.S. Supreme Court decides another trademark case that raises the same basic issues. The team is challenging a decision by the U.S. Patent and Trademark Office to cancel the trademark for the name “Redskins” on the grounds that it is offensive.

While that case was pending, the U.S. Supreme Court agreed to hear a dispute involving Asian American musicians from Portland, who were refused trademark registration for their band’s name, The Slants (see my other Blog Post on this). The USPTO refused to register THE SLANTS as a federal trademark for names considered offensive, which is the same law at issue in the Redskins case.

A lower court found that provision to be unconstitutional, as a restraint on free speech, so the feds are now appealing. A decision is expected by late June. Although the loss of a registration would not strip the team from being able to use the name, it would bar them from federal benefit protections including the right to exclusive nationwide use of the mark, and to enforce its trademark rights against infringers.

There are many reasons why a trademark might be threatened, one of which could be changes on social standards, or perhaps changing meanings.

The history of the fight for the Redskins brand can be found on Wikipedia here

See also, our article on the band ‘The Slants’

“The Slants” Trademark Case Heard by Supreme Court

“The Slants” had their trademark challenged as disparaging and took it to the Supreme Court.

Asian American Simon Tam is battling the federal government over his band’s trademark, under a federal law that forbids the registration of “disparaging” marks.  The Slants first tried to register their band name in 2011, but the U.S. Patent and Trademark Office (“USPTO”) refused the trademark application for “The Slants” as being offensive to people of Asian ancestry.  Tam appealed.

Last December, the appeals court of the federal circuit ruled that the law in question [Section 2(a) of the Trademark Act, which prohibits registration of a trademark that “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”]  violates the Constitution.

“It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys,” said the appeals court in the ruling, which noted that denying The Slants the request for a trademark amounted to “viewpoint discrimination.”

The dispute provoked a lively Supreme Court argument in January over free speech, political correctness and the government’s refusal to sanction what it sees as a racial slur.

The justices struggled over whether the refusal by Congress and the Patent and Trademark Office’s to register trademarks that can be seen as disparaging people or their beliefs violates the 1st Amendment.

While The Slants are proud of their music, it’s always gone hand-in-hand with political advocacy. They seek to help other marginalized groups, ranging from gays and lesbians to the Black Lives Matter movement, through workshops and charitable activities.

“Arts and activism have always moved forward together,” Tam says.

This case is similar to the Redskins case and can be found in much more detail on wikipedia