Saturday, 24 June, 2017

Rejecting trademarks that 'disparage' others violates First Amendment

Supreme Court Building is seen in Washington The Supreme Court says the government can't refuse to register trademarks that are considered offensive. | AP file
Lamar Ellis | 20 June, 2017, 00:28

The Supreme Court of the United States decided in the case ofMatal v. Tam Monday to strike down a key provision of the Lanham Act barring the United States Patent and Trademark Office from recognizing a disparaging trademark, citing concerns that the act violated the First Amendment.

The trademark office in 2011 said registering the trademark of the Slants, an Asian American rock group, would violate a part of the 1946 Lanham Trademark Act that prohibits registration of a trademark that "may disparage. persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute".

"The government defends free speech around the world because it knows when free speech is threatened, religious minorities suffer", said Hannah Smith, senior counsel at Becket, a non-profit religious liberty law firm that says it has teamed with the government in the past to fight laws banning insulting or defaming religious speech.

Supreme Court rejected an appeal from the Redskins trademark case in October, denying the petition for review before a lower court had a chance to rule on the matter.

The justices were unanimous in saying that the 71-year-old trademark law barring disparaging terms infringes free speech rights guaranteed in the Constitution's First Amendment. "It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend". He has called the Redskins' name a "badge of honor". A federal appeals court in Richmond put the team's case on hold while waiting for the Supreme Court to rule in the Slants case.

But the Federal Circuit, ruling on the Slants' case in December 2015, overturned that precedent, declaring that the rule penalized unpopular speech by denying the substantial benefits of a trademark registration.

Redskins owner Dan Snyder has repeatedly said that he will not change the nickname despite the opposition.

He says he picked his band's moniker in an effort to reclaim a stereotype.

The ruling likely paves the way for the Redskins to protect trademarks covering the team's name. Snyder issued a quick response to the decision on Monday: "I am THRILLED". Alito also said trademarks are not immune from First Amendment protection as part of a government program or subsidy.

But when the litigation of the word "redskins" is left to a group like the PTO, the resulting decisions will always say more about that body's own biases than anything else.

Band members also dedicated their new release, "The Band Who Must Be Named", as an "open letter to the United States Patent and Trademark Office to articulate these values".

Critics of the law said the trademark office has been wildly inconsistent over the years in deciding what terms are too offensive to warrant trademark protection. Justice Anthony Kennedy wrote a separate opinion and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. The decision could destroy legal challenges to other controversial trademarks, such as the Washington Redskins football team. The band's lawyers argued that the government can not use trademark law to impose burdens on free speech to protect listeners from offense.

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