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The Courts

Federal Circuit Overturns Prohibition On "Disparaging" Trademarks (arstechnica.com) 118

New submitter flopsquad writes: On December 22, the Federal Circuit released a decision overturning, on First Amendment grounds, the part of US trademark law that prohibits registration of "disparaging" marks. This case concerned the USTPO's refusal to register a mark for the Asian-American band "The Slants". However, the decision will no doubt have wider implications for brands such as the embattled Washington Redskins, whose mark was ordered canceled earlier this year.
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Federal Circuit Overturns Prohibition On "Disparaging" Trademarks

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  • by Anonymous Coward on Wednesday December 23, 2015 @09:07PM (#51176093)
    I think "The Slants" is a brilliant name!!!
  • by Weirsbaski ( 585954 ) on Wednesday December 23, 2015 @09:09PM (#51176101)
    It was the right decision- even jerks need to be allowed freedom of speech. (And I say that as one of the jerks :-) )
    • by DaHat ( 247651 )

      While I agree with you, SCOTUS probably won't given their previous ruling on offensive license plates.

      • Well you never know, they might overturn it. So what if somebody writes the word FUCK on their license plate? Maybe they're a pornstar and they want people to know it.

        In fact I even think the FCC should drop its decency rules as well for the same reason. Does that mean we'll start seeing porn channels on the terrestrial channels? Well, no, given that cable channels don't do that, and they even filter out swear words when they aren't under any obligation to do either. But the reason the FCC decency rules sho

      • by Br00se ( 211727 )

        They determined that license plates were government speech and that the government could restrict it. It's not like they outlawed offensive bumper stickers.

        Besides, trademarks exist to benefit the public to prevent confusion in the marketplace. In theory. They should not be considered property, not even "intellectual property" in my opinion. They should exist only to prevent a 3rd party from taking advantage of the good (or bad) relationship between a mark holder and the public.

        • by DaHat ( 247651 )

          They should not be considered property

          Except they are, which is why they can be bought and sold not unlike domain names... whoever gets there first gets to claim the name for themselves and has the state (or ICANN) help to enforce their exclusive use, and they are free to transfer it to someone else at a later time.

          • by Br00se ( 211727 )

            Yes, I don't deny that they are, however ownership is not absolute. It's why companies like Xerox have to fight to keep the term from becoming generic. Google Genericide. I wonder how long before Google becomes genericided.

            Also, you can't sit on a Trademark the way you can sit on a domain name. You must use it in trade and protect it, or it can be considered abandoned in a little as three years (US). Too bad we don't have s similar limit for copyright.

            • I wonder how long before Google becomes genericided.

              That probably won't happen unless somebody else can own their own google domain name, which the use of the trademark makes explicit reference to. Since only one entity can own it, that's not likely to ever happen.

              This is likewise why Microsoft is trying, rather unsuccessfully, to push people to say "bing it", which appears in in-show product placements, or "bing and decide", which appears in their commercials. They wouldn't do either if they felt they could ever lose the trademark.

            • Google Genericide. I wonder how long before Google becomes genericided.

              Not long, thanks to genericidal maniacs like you.

            • Too bad we don't have s similar limit for copyright.

              You do only instead of having to fight and defend the trademark to keep it protected with copyright companies have to fight the copyright law to keep on extending it so it remains protected.

          • Except they are, which is why they can be bought and sold not unlike domain names.

            No, not that freely. Just outright selling a trademark would be considered naked licensing, i.e. the transfer of the mark, without the reputation in the marketplace that the mark stands for. The result is that the mark is treated as having been abandoned, and that any previous junior users of the mark now have seniority over you if you want to reestablish protection.

            To transfer a mark correctly is a lot of work, and takes a lot of time. It's generally part and parcel of the sale of the entire business that

      • License plates are different. The last thing we need is for license plates to shock other drivers or make them angry on the road, that's a public safety issue. And of course custom license plates are a luxury item sold by the state.

        • by Anonymous Coward

          First, I agree with the SCOTUS ruling on vanity license plate content. This, however:

          The last thing we need is for license plates to shock other drivers or make them angry on the road, that's a public safety issue.

          Well, that's just shallow reasoning. If the public safety aspect of license plate content were sufficiently motivating, then that would argue for a similarly valid government interest in regulating the content of bumper stickers and similar adornments. Darwin fish are pretty offensive to a small, yet fervent, minority of Christians, but so far we have no good evidence of vehicular accidents caused by them.

          If Jello Biafra

          • Darwin fish are pretty offensive to a small, yet fervent, minority of Christians, but so far we have no good evidence of vehicular accidents caused by them.

            If we did have good evidence of accidents caused by Darwin fish, that would mean we should enact tests to determine who's offended by them, and deny them drivers' licenses as they're a hazard on the road. The Darwin fish are an example of free speech, and it would be wrong to deny the fish-lover his right to adorn his car the way he wants because some

        • The problem with that argument is that you can make it almost anywhere because it is always safer not to risk making people angry. For example in the US any member of the public might be carrying a gun and if they saw something which made them angry they might shoot someone. So you'd better not allow any signs anywhere which might offend someone. Then of course they might overhear something so better ban that type of speech as well and pretty soon you can kiss all your freedoms goodbye.
          • When driving, any momentary distraction is potentially deadly -- that's not true in many other situations, perhaps when operating dangerous industrial equipment but that's about it. Of course, those evil distracting video billboards are a lot worse than an offensive license plate -- but they're not issued by the government for identification purposes so it takes a higher standard of evidence to remove them.

    • by mysidia ( 191772 )

      It was the right decision- even jerks need to be allowed freedom of speech. (And I say that as one of the jerks :-) )

      No you mean "Even jerks need to be allowed to restrict other people's free speech".

      If registering a trademark, which is an exclusive monopoly on a logo, label or branding, is an expression of "free speech", then we live in the world of 1984, where the government protects your right to free speech by restricting what you can say, the government protects your right to bear arms by pass

      • by Br00se ( 211727 )

        Trademarks are a restriction on pretending to be someone else. If I have a business that becomes known by a certain name and I apply for protection for that name, it's protecting both my business and the public from someone trying to capitalize on the good (or bad) reputation I have established.

    • Even jerks need freedom of speech, but trademark protection goes far beyond just freedom of speech. Trademark protection means the full force of government -- the courts, the criminal justice system, the police (to enforce the court's decisions), the military (to enforce economic sanctions), customs & border control, etc. -- can be wielded by the trademark holder to enforce their sole ownership of a term. Do you think it's right that the government should be forced to spend millions of tax payer dollars

      • Do you think it's right that the government should be forced to spend millions of tax payer dollars to enforce someone's exclusive use of an offensive term?

        Are you certain that the government should be forced to spend millions of tax payer dollars enforcing anybody's trademark? Or anybody's rounded corners? Or anybody's song that was written 80 years ago? Or anybody's patent on a button that you click to buy something?

      • Holding a trademark is hardly sole ownership of a term. Even dilution doesn't stretch that far. But I agree that it should strictly be a civil matter if no fraud is involved.

  • There goes my team name, "The White Weenie Weenies"
  • by Joe Gillian ( 3683399 ) on Wednesday December 23, 2015 @09:32PM (#51176181)

    I get that "slant-eyed" is a racist description of Asians, but there is absolutely nothing racist about the word "slant". Hell, it even mentions that the band is Asian-American.

    • by arth1 ( 260657 ) on Wednesday December 23, 2015 @10:28PM (#51176365) Homepage Journal

      I get that "slant-eyed" is a racist description of Asians, but there is absolutely nothing racist about the word "slant". Hell, it even mentions that the band is Asian-American.

      This is likely the reason why it was rejected. In itself, it is not offensive, but in the context of Asians, it becomes so.
      Much like Top Gear's "There's a slope on the bridge".

      MInd, I'm not saying that rejecting the name was the right decision, but I believe the context was what mattered, not the word.
      It's like an Indian-American band called themselves "Towel" - it might be considered derogatory by some non-band members.

      • They should have been smarter about it -- start the band as non-asians, and swap out band members over the next year.

        • by tsotha ( 720379 )
          But then the government could have canceled their trademark, the same way they did that of the Redskins.
    • by AmiMoJo ( 196126 )

      Words can't be inherently racist. Even "nigger" can be acceptable in some circumstances. It always comes down to context.

    • by houghi ( 78078 )

      The fact that they are or are not Asian-American should make a difference. e.g. many think that the band name N.W.A. could be a slur, where the band members themselves obviously think differently.

      If you start with what you can or can not say because of your race, you are doing the thing you try to prevent. Remember that 'positive discrimination' is also discrimination with an adjective added to it.

  • Obviously they don't think that it is anymore, but how was it ever?
    • One of the interesting side effects of everything offending someone is that it actually produces a library of offensive terms for all time. The derisive meaning of "slant" was pretty much aged out, but now it's back, and written down to be used for generations to come.

  • ... the USTPO's ...

    Err... that's the United States Patent and Trademark Office, not the Undergraduate Student Toilet Paper Ombudsman. Though dealing with either one can be a pain in the ass. ;)

  • One cannot 'disparage' themselves?

    The Law, in this instance and others, is an ass.

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