Lee v. Tam: Why "The Slants" trademark dispute matters

Supreme Court To Hear The Slants' Trademark Case This Week


The U.S. Supreme Court will hear oral arguments this week for a trademark dispute concerning the Portland dance-rock band, The Slants

The federal Patent and Trademark Office refuses to register the band’s trademark, because, the PTO argues, the band’s name is an ethnic slur. Attorneys for the government argue that a ruling against the PTO in this case might undermine other important areas of trademark law.

Professor Eugene Volokh teaches First Amendment and copyright law at the UCLA School of Law. He and another professor helped The Slants’ legal team on briefs for the case. They contend the band’s right to register is a matter of free speech.

“In recent years the Patent and Trademark office has become more likely to say certain trademarks should be rejected,” Volokh said, “because they express essentially offensive political or ideological opinions. So, for example, the Redskins.”

The Washington Redskins football team is awaiting the outcome of the Slants case. Its own trademark was revoked for similar reasons, and the team is trying to get it reinstated. The Slants have traveled to Washington, D.C., for the hearing, scheduled for Wednesday.
Comment: Watch this one! More from the Star Tribune / SCOTUS Blog
As for the Slants, the band just released a new song called "From the Heart" about the upcoming case. Tam says it's "like an open letter to the trademark office saying we're not going to give up, we're going to continue fighting for what's ours." The song is on the band's latest album "The Band Who Must Not Be Named."
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Updates: 1/18/2017

Justices raise doubts over law barring offensive trademarks
The justices heard arguments in a dispute involving an Asian-American band called the Slants that was denied a trademark because the U.S. Patent and Trademark office said the name is offensive to Asians. Justice Elena Kagan reflected the concerns of several justices when she said government programs are not supposed to make a distinction based on viewpoint. "The point is that I can say good things about something, but I can't say bad things about something," she said. "And I would have thought that that was a fairly classic case of viewpoint discrimination." The Oregon-based band says the 70-year-old law violates free-speech rights. A federal appeals court had ruled that the law is unconstitutional, but the government appealed. A victory for the band would be welcome news for the Washington Redskins, embroiled in their own legal fight over the team's name. The trademark office canceled the football team's lucrative trademarks in 2014 after finding the word "Redskins" is disparaging to Native Americans. But the justices also seemed concerned that imposing absolutely no limits on trademark names might go too far. At issue is a law that prohibits registration of marks that "may disparage ... persons, living or dead, institutions, beliefs or national symbols." A trademark confers certain legal benefits, including the power to sue competitors that infringe upon the trademark. Slants founder Simon Tam says his goal was to reclaim a derisive slur and transform it into a badge of ethnic pride. But the trademark office said a term can be disparaging even when used in a positive light. A federal appeals court sided with the band, ruling that the law violates the First Amendment. The Obama administration wants the high court to overturn that ruling. Justice Department lawyer Malcolm Stewart told the justices that the law does not restrict speech because the band is still free to use the name even without trademark protection. Stewart said the government was concerned about allowing trademarks for racial slurs, religious insults and the "vilest racial epithets" that distract consumers and hinder commerce. Justice Stephen Breyer wasn't impressed, saying he could think of "perhaps 50,000 examples of instances where the space the trademark provides is used for very distracting messages." "What business does Congress have picking out this one, but letting all the other distractions exist?" Breyer asked. Justice Anthony Kennedy compared the trademark program to copyrights, noting that the government can't bar disparaging copyrights. "We have a culture in which we have tee shirts and logos and rock bands and so forth that are expressing a point of view," Kennedy said. "They are using the market to express views." Justice Ruth Bader Ginsburg said the law wasn't being enforced consistently, noting that the term "Heeb" was approved in one trademark application, but not in another. The term is considered offensive to Jews. John Connell, attorney for the Slants' founder, said the First Amendment should allow trademark approval of virtually any expression without limits. But some justices seemed to think his argument went too far. The trademark law, for example, places restrictions on words that are libelous or cause confusion in the marketplace. "You want us to say that trademark law is just like a public park" where people can say whatever they want, Kennedy told Connell. "Good-bye. That's it. That's your argument." Justice Sonia Sotomayor wondered about libelous trademarks. What if someone tried to register "Trump is a thief" before the president-elect became a public figure, she asked. Connell said that should be allowed. "That makes no sense," Sotomayor said. Breyer noted that the Slants are free to use their name in all kinds of ways, just not in the trademark itself. "This is not a general expression program," Breyer said. "It stops nobody from saying anything." Like the Slants, the Redskins say their name is meant to honor American Indians. But the team has spent years fighting legal challenges from Native American groups that say it's a racial slur. A federal judge upheld the trademark office's cancellation of the name and the team is appealing. The matter is on hold pending the outcome of the Slants case. A ruling in that case is expected by the end of June.

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