Supreme Court Rules First Amendment Protects Disparaging Trademarks
A high-profile trademark fight centered on the Asian-American rock band The Slants ended Monday with a ruling that the Lanham Act's prohibition against “disparaging” marks violates the First Amendment.
June 19, 2017 at 05:02 PM
14 minute read
Ruling in a high-profile trademark case, the U.S. Supreme Court on Monday said that the Lanham Act's prohibition against “disparaging” marks violated the First Amendment free speech rights of the Asian-American rock band The Slants.
The 8-0 decision in Matal v. Tam ends 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.
In a Facebook post Monday, the band celebrated the decision: “The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination.”
Initial reaction suggested that the trademark bar and the public should brace for a wave of distasteful trademark applications. “It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks,” said Orrick, Herrington & Sutcliffe 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.”
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