The Supreme Court issued a ruling this week in which it said that the US Patent and Trademark Office (PTO) cannot deny trademark registrations that it deems inappropriate or disparaging.
The case at issue was a request by Simon Tam, the lead singer of a group known as The Slants, to trademark the name. His request was denied by the PTO under a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” In other words, registering the name “The Slants” was disparaging to people of Asian descent and the PTO wouldn’t grant the request.
Tam took his case to court, and the Supreme Court ultimately decided in favor of Tam in a unanimous decision.
According to the court’s opinion, written by Justice Samuel Alito, “Contrary to the Government’s contention, trademarks are private, not government speech.”
The government is not required to maintain viewpoint neutrality on its own speech. This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.
The Washington Redskins
This ruling has an interesting effect for another situation involving the PTO in which the Trademark Trial and Appeal Board revoked six federal trademark registrations belonging to the Redskins organization for the same reason, namely that the government decided the team name is disparaging to native Americans.
Will this let the Redskins off the hook? According to Darren Heitner, attorney and founder of Heitner Legal, P.L.L.C., most likely the Redskins can have their trademarks reinstated.
“It is safe to assume that the Washington Redskins will be able to take up its fight for reinstatement of its own registrations and likely succeed in its efforts,” wrote Heitner.