SCOTUS Strikes Down Trademarks Disparagement Clause

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate.” - Justice Samuel Alito Jr.

In news not related to the False Claims Act, the Supreme Court has ruled that the Lanham Act's "Disparagement Clause"--which bars the registration of "offensive" trademarks--is unconstitutional because it violates the First Amendment. The suit was brought by Simon Tam, lead singer of the Asian-American band "The Slants," after the U.S. Trademark Office rejected his application to trademark the name because it was disparaging to those of Asian descent. As a result, other bands were able to use the name without repercussion.

This case was recently featured on NPR's "Planet Money" podcast (which I highly recommend), which explained that the USPTO's decisions as to what is and is not offensive often comes down to a single examiner and his or her subjective views.

The case has been watched closely by the Washington Redskins, who filed an amicus brief on behalf of the Slants, who of course have been the subject of much controversy over the use of their name. A case against the Redskins is currently pending before the Fourth Circuit.

Bracker & Marcus LLC and its members express no opinion as to the propriety of the Washington Redskins trademark.