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Speech Wins. Again.

Yesterday, the Supreme Court published its opinion on the case of Matal v. Tam<./a> This is the case often referred to as “The Slants” case in which the Patent and Trademark Office denied the Slants the ability to copyright the name of the band.

Quoting the decision:

This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force.

The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a).

The Slants sued the government on First Amendment grounds.

The arguments and positions from both the Slants and the government are pretty interesting.

The Slants argued that the regulation was being interpreted too broadly by the PTO in covering who groups of people when the statute clearly states “individuals” and persons. The Slants argued that the PTO had allowed other disparaging trademarks previously.

The government argued that the trademark was government speech and not subject to the provisions of the First Amendment. The government also argued that the speech in question was “government subsidized,” and therefore the government could control the content.

The Supreme Court voted 8-0 that the disparagement clause being used by the PTO was unConstitutional.

We loved this part of the decision:

And once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds. It is thus far-fetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently. And none of this Court’s government-speech cases supports the idea that registered trademarks are government speech (emphasis ours)

The problem we have always had with the PTO in this case is “who decides what is disparaging?” That is a moving target that may change with time or with different people. For example, what if were we wanted to name a band “The Shorts,” because all of the people in the band were less than 5 feet tall? Is that “disparaging?” What if we wanted to call a band “The Gingers,” because all the members have red hair. Disparaging?

Anyone but us remember the rap group “NWA?” which alleged stood for “niggers with attitudes.” Disparaging?

We just don’t like the idea of someone in some office saying “you can say this, but you can’t say that.”

While this seems like a major win for a small band with an even smaller musical niche, the implications of the decision are huge.

Sitting off on the corner watching these proceedings would have been the PTO, the NFL and a little team called the “Washington Redskins.”

The PTO had revoked the Redskins’ trademark protection based on the same reasoning and clause used against the Slants. A Judge stopped that pending the Slants case, but it seems like the legal battle against the Redskins has shifted mightily toward the team.

Yesterday was a good day for those who believe in the First Amendment.



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