The Slants Win Supreme Court Battle Over Band's Name In Trademark Dispute

20 June 2017, 12:09 | Santos Harmon

In a victory for freedom of speech, the Supreme Court ruled Monday that a trademark law banning offensive names was unconstitutional, siding with a rock band called The Slants, whose name had been deemed racially insulting by the feds.

The case centered on the Oregon-based, Asian-American band, which was denied a trademark because its name was considered offensive.

The case was being closely watched because the Washington Redskins had asked the court to take its case challenging the PTO's decision to cancel its trademark, but the court refused.

Tam initiated legal proceedings to challenge the PTO's ruling, which opened up a discussion about the First Amendment itself as well as the role nuance and interpretation could or should play in the PTO's enforcement of the Lanham Act.

In their decision, the U.S. Supreme Court affirmed the lower court's opinion.

The four more "conservative" justices, led by Justice Alito, explained why trademarks don't constitute a subsidy or other type of government program (within which the government can regulate speech), and that the "disparagement clause" doesn't even survive the more deferential scrutiny that courts give "commercial" speech.

Justice Samuel Alito delivered the opinion for a largely united court.

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In an email, Tam rejected the notion that upholding the gutted provision of the Lanham Act would hamper the Redskins' efforts to keep their name. That court was waiting for the Supreme Court to rule on Matal v. Tam before it made its decision. But a year ago, it allowed Texas to ban specialty license plates featuring the Confederate flag because it was considered a form of government speech.

Dan Snyder, the team's owner, has said that the name "represents honor, represents respect, represents pride".

The National Congress of American Indians and the Change the Mascot campaign clearly recognized the import of a decision that federal trademarks, even offensive ones, can be registered but called on the NFL to change the name. Snyder issued a quick response to the decision on Monday: "I am THRILLED".

The court also said the Voting Rights Act provision at issue could only be enforced by the US attorney general, and lawsuits by private parties were barred.

"A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all", Kennedy said in an opinion joined by Justices Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan.

The patent office's attorney had argued that the word "slant" was "a negative term regarding the shape of the eyes of certain persons of Asian descent" that has a "long history of being used to deride and mock a physical feature of those individuals".

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.



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