In case you didn’t hear, the Supreme Court of the United States ruled earlier this month that the trademark office’s refusal to register trademarks it deems disparaging as unconstitutional. The unanimous June 19 decision asserted that the clause which bars disparaging marks from federal registration was a violation of the free speech provision of the First Amendment.
So the Asian-American pop group The SLANTS gets to continue its quest to register its name as a trademark, and the Washington REDSKINS may avoid having their registrations fully cancelled.
But wait! So The SLANTS band was refused a registration—but the owner of the REDSKINS was granted not just one but numerous registrations? Even though The SLANTS maintains it is reclaiming a racial slur and turning it into a term of empowerment (like DYKES ON BIKES did when it convinced the trademark office to, um, grant it Registration no. 3323803), while Pro-Football, Inc. (doing business as The Washington Redskins) is a billion-dollar empire built on what some perceive to be a derogatory term?
And even though, as pointed out by The SLANTS’ founder, Simon Tam, “slant” is an everyday term and “one that has been registered as a trademark many times, primarily by white people.” Hmmm.
The Supreme Court ruling clarifies that trademark registrations are not government speech but private speech, and that offensive or hateful speech is still protected by the First Amendment.
Which, as researched by SCOTUS and listed in the Appendix of the amicus brief from Pro-Football Inc., is what the trademark office might have been thinking when it previously granted registration to BITCH (Rn. 4822287); BITCHY GAY (Rn. 4800962); CHOLOS ON ACID (Rn. 4977958); CONTEMPORARY NEGRO (Rn. 4186070); GRINGO STYLE SALSA (Rn. 4252304); QUEERS OF COMEDY (Rn. 3697251); THE GUIDOS OF COMEDY (Rn. 4508998); THE SHIKSA IN THE KITCHEN (Rn. 4273423); and YELLOWMAN (Rn. 3539211) amongst many others.
The trademark approval/registration process can often come down to subjective judgement (call) by an Examiner at the trademark office—but words/speech “may not be banned on the ground that it expresses ideas that offend” (Justice Alito), and the decision by SCOTUS clarifies that the First Amendment prohibits individual government officials from deciding what words are offensive and what are not.
While brands may not be comfortable flirting with controversy like this, the related category of scandalous and immoral trademarks is not necessarily off limits, as brands such as French Connection (U.K.) aka FCUK (Rn. 4167152) and Friends U Can’t Trust aka FUCT (Application no. 85310960) and this (Rn. 5016548) have shown us. World Trademark Review notes how, following the Tam ruling, numerous offensive trademark applications were filed as the “USPTO—Warning : Definitely contains strong language.”
In effect, the ruling will not only allow brands to call themselves whatever they want, but to seek trademark protection for it—even if some people find it offensive.
Jerome McDonnell is group trademark director at Interbrand.
Follow him on Twitter: @jeromemcd
The post The US Supreme Court Ruling That Protects Disparaging Names appeared first on brandchannel:.
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