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The First Amendment Protects Offensive Names

On Behalf of | Jun 24, 2017 | Uncategorized

Have a controversial name you’d like to trademark? Go right ahead. The road is clear now after the U.S. Supreme Court declared it to be unconstitutional for the federal government to deny a trademark on the basis of the name being potentially offensive.

The case

While the Washington Redskins have gotten a fair amount of press for their efforts to hang on to a team name some find offensive, the football team’s name was not the subject of this case. Instead, the subject was an Asian-American band called The Slants, which has been its name with the U.S. Patent Office since 2011.

The case involving The Slants declared unconstitutional a part of federal law –the “disparagement clause” — that had denied trademarks for names that disparage any groups. The reasoning was that once something becomes a trademark, it enters the realm of government speech. But the justices unanimously decided that the federal law was unconstitutional, and could not outlaw speech based on the opinion of the government.

The Washington Redskins

The football team, which had previously lost its trademark protections under the very law that has now been declared constitutional, will likely seek to reinstate the name that it has held for decades.

The Supreme Court case brings to a close a longstanding argument between those who would prioritize free speech vs. those who would seek to limit trademarks to inoffensive terms. With its unanimous ruling , the U.S. Supreme Court left no doubt which side of the argument it takes.