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Supreme Court News
'Disparaging' Trademarks Decision
The U.S. Supreme Court decided that the Lanham Act's prohibition against “disparaging” marks violated the First Amendment free speech rights of the Asian-American rock band The Slants. Matal v. Tam, 15-1293 (June 19, 2017). The 8-0 decision ended a long battle by band founder Simon Tam, who asserted, in words and song, that he picked the name “Slants” not to disparage Asian-Americans, but to “reappropriate” the term as a badge of Asian-American pride — in the same way that the term “queer” has become a positive expression among LGBTQ individuals.
Initial reaction to Matal suggested that the trademark bar and the public should brace for a wave of distasteful trademark applications. It's not unusual, for example, for band names to be more than provocative. “It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks,” said Orrick, Herrington & Sutcliffe law partner Lisa Simpson. “While this may be the right result under the First Amendment … it seems the responsibility will now pass to the public. Trademark is a consumer-based law. And so it will be up to consumers to reject the most hateful of these marks and slogans.”
The decision was also good news for the Washington Redskins. A Virginia federal district court had ordered cancellation of the football team's federal trademark registrations. Pro-Football Inc. v. Blackhorse, 112 F. Supp. 3d 439 (E.D.Va. 2015). That case is pending before the U.S. Court of Appeals for the Fourth Circuit.
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