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Justices say law on offensive trademarks is unconstitutional

20 June 2017

In this April 4, 2017 file, the Supreme Court in Washington.

The Slants' frontman, Simon Tam, filed a lawsuit after the U.S. Patent and Trademark Office kept the band from registering its name and rejected its appeal, citing the Lanham Act, which prohibits any trademark that could "disparage. or bring. into contemp [t] or disrepute" any "persons, living or dead", as the court states.

In 2014, following a vehement campaign to pressure the National Football League and Washington Redskins owner Dan Snyder to change the team's name over the concern that it offended many Native Americans, the trademark office canceled the Redskins' trademark, citing the same clause in the Lanham Act as it did with the Slants' application in 2011.

The federal government said in court papers that it should not be required to approve trademarks "containing crude references to women based on parts of their anatomy; the most repellent racial slurs and white-supremacist slogans; and demeaning illustrations of the prophet Mohammed and other religious figures".

Writing separately, Justice Anthony Kennedy stressed that the ban on disparaging trademarks was a clear form of viewpoint discrimination forbidden under the First Amendment.

The Redskins' appeal on that decision was put on hold by a federal appeals court in Richmond, Va., until the Supreme Court ruled on the Slants case.

The justices were unanimous in saying that the 71-year-old trademark law barring disparaging terms infringes free speech rights guaranteed in the Constitution's First Amendment.

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"The disparagement clause violates the First Amendment's Free Speech Clause", Justice Samuel Alito wrote in his opinion for the court.

The team has used the "Redskins" name since 1932.

"Fortunately, today's opinion prevents the kind of absurd outcome that results when the government plays speech police", Rowland said. Alito also said trademarks are not immune from First Amendment protection as part of a government program or subsidy.

Justice Neil Gorsuch joined the court after arguments were heard in the case and did not participate in Monday's decision.

The team's name itself is not at stake, but if the trademark is canceled, the name becomes less valuable because the owners would struggle to enforce their trademark against anyone who wanted to use the name or Indian logo on their own merchandise.

Redskins attorney Lisa Blatt said the court's decision effectively resolves the Redskins' longstanding dispute with the government. And the idea that our market will be flooded by people who just want to register marks on a whim is ridiculous. people have to have an established business objective, pay the fees, go through the paperwork and have their information in public.

Trademark office spokesman Paul Fucito said officials are reviewing the court's ruling and plan to issue further guidance on how they will review trademark applications going forward.