Justices say government can't refuse disparaging trademarks

Supreme Court Building is seen in Washington

The US Supreme Court has deemed the government's ban on disparaging trademarks unconstitutional, handing a win to rock band The Slants and overturning more than 70 years of legal practice.

USPTO had used Section 2A of the Lanham Act, an old and often overlooked or forgotten piece of U.S. law, to justify rejecting The Slants' application for trademark.

The team's appeal, also on free speech grounds, was put on hold in the 4th Circuit Court of Appeals in Richmond, Virginia, pending the outcome of The Slants' case. "Speech may not be banned on the ground that it expresses ideas that offend", Alito writes in his opinion.

The U.S. Supreme Court stands in Washington, D.C., on May 18, 2015.

After hearing arguments from both sides in January 2017, the Supreme Court justices (minus Justice Gorsuch, who was not yet on the bench when oral arguments took place) unanimously ruled today that the government is violating the First Amendment by barring the registration of disparaging trademarks.

Trademarks, even ones that may offend many people-of which plenty are registered by the Patent and Trademark Office (PTO)-are private speech, which the First Amendment prevents the government from censoring.

The Supreme Court's ruling Monday that an OR rock band can trademark its name despite being considered a derogatory term is sure to be good news for lawyers working for Washington's National Football League team.

The Slants said their name was a way to reclaim an offensive word as a badge of ethnic pride. "When I found out what the government was doing and how they were doing it, how they were using it to suppress speech and how they were trying to take rights away from my own community, I decided that was not right". In 2012, a fashion designer filed a trademark application for that name but withdrew the papers shortly before his request was denied.

As NPR's Nina Totenberg has reported, "the trademark office has denied registration to a group calling itself "Abort the Republicans", and another called "Democrats Shouldn't Breed".

The court has ruled the government can't refuse to register trademarks that are considered offensive. The Obama administration then appealed to the Supreme Court. The Redskins case has been stayed pending the high court's ruling.

Hopefully, this ruling will make everything simpler, but it also allows for the possibility of a great deal of hurtful trademarks. "If affixing the commercial label permits the suppression of any speech that may lead to political or social 'volatility, ' free speech would be endangered", he wrote.

The Redskins' attorney issued a statement (via the Washington Times) in response to the ruling, saying, in part, "The Team is thrilled with today's unanimous decision as it resolves the Redskins' long-standing dispute with the government". This ruling offers plenty of protection for the Redskins, even though some have protested the use of the name.

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