Trademarks and the First Amendment

It all started with The Slants, an Asian American music band, whose lead singer, Simon Tam, sued the U.S Patent and Trademark Office (USPTO) over § 1946 of the Lanham Act, which prohibited the use of disparaging trademarks. The USPTO cited § 1946 of the Lanham Act, when it refused Mr. Tam’s application to register the band’s name THE SLANTS, as a trademark, noting that the term had traditionally been used as a slur word against Asian minorities. The Mr. Tam, however, wanted to use this name to reclaim its meaning and turn it into a word of empowerment.

What started off as a trademark dispute turned into a question of constitutional law involving the First Amendment that was heard by the United States Supreme Court. Concluding a 6-year legal battle, the Supreme Court struck down the disparagement clause of the Lanham Act, reasoning that because trademarks are the words of a private person, not the government, trademarks should not be suppressed based on the grounds that they could be found offensive. Rather, registration for trademarks should be viewed neutrally, since the federal government should not be given the ability to police certain forms of speech over others.

As the Mr. Tam and other members of The Slants celebrate their victory, the Washington Redskins celebrate its victory, as well. The U.S Patent and Trademark Office cancelled the NFL football team’s registration for its REDSKINS trademark in 2014 at the urging of certain Native Americans who found the team’s mark offensive. Now, the NFL team has the ability to reclaim its registration.

Many more individuals and companies are also celebrating alongside The Slants and the Washington Redskins. In the past few weeks, trademark applications for proposed marks containing arguably taboo or offensive words, that likely would not have been registered previously, have been stockpiling on the desks of the USPTO.

Some of these applicants share The Slants’ desire to reclaim derogatory words. For example, Curtis Bordenave, who submitted two separate applications to register the proposed mark NIGGA (application serial numbers: 87/496567 and 87/495358), claims to want to recover the word, turning it into a symbol of unity. In other cases, individuals are claiming a desire to register certain words as trademarks in order to safeguard the marks from falling into the wrong hands. Steve Maynard, for example, claims the application his company, Snowflake Enterprises, LLC, filed to register the Swastika symbol (application serial number: 87/503998) as a trademark, was done so that he can dilute the Swastika’s modern-day symbolism and use it as a tool against white supremacy.

Still, many will continue to take advantage of this new rule, filing trademarks that may be offensive to others. Thus, with the Supreme Court’s new rule, the responsibility of speech falls within the conscience of the public. But now with the floodgates open, society will witness both the beneficial and harmful consequences as we maneuver around and experiment with this new legality.

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