Racial Disparagement? The U.S. Supreme Court Rules on “The Slants” Trademark Refusal

Written by Colligan Law on . Posted in Articles, News

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By Erin Gormley

Summer is often a season for music, when music lovers listen to their favorite artists at concerts, in their backyards, and in their cars with the windows down. This summer, a U.S. Supreme Court case has caused music to become a place where freedom of speech and trademark law intersect.

The U.S. Supreme Court recently ruled that the rock band “The Slants,” made up of Asian-American musicians, cannot be barred from using that name, regardless of the potential of disparagement to Asian and Asian-American individuals. The United States Patent and Trademark Office (the “USPTO”) initially prohibited the band from registering the name “The Slants” as a trademark in classification 041 for “entertainment in the nature of live performances by a musical band” on the grounds that “the applied-for mark consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.”

Members of the band filed an appeal with the USPTO, and following the rejection of the appeal, filed a subsequent federal lawsuit. Late last month, the Supreme Court agreed with the band. The appeal measured the first amendment freedom of speech against trademark law.

In the Court’s 8-0 opinion, Justice Samuel Alito strongly emphasized that the disparagement clause of the Lanham Act (the federal trademark law), which prohibits any trademark that could “disparage … or bring … into contempt or disrepute’ any “persons, living or dead,” was in violation of the First Amendment’s Free Speech Clause. Unlike government speech or certain other material that is more heavily scrutinized in First Amendment cases, trademark applications and registrations brought by private individuals or groups are private speech, and must be subject to a broader test in terms of protection.

In his opinion, Justice Anthony Kennedy wrote that “a law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.” Justice Samuel Alito added that “the commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”

This ruling sets a broad precedent for future cases involving potentially controversial statements and phrases put forth in federal trademark applications made by private groups or individuals, reaffirming the high extent to which private speech is protected under federal law.