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The Courts United States Your Rights Online

Offensive Trademarks Must Be Allowed, Rules Supreme Court (arstechnica.com) 252

In a ruling that could have broad impact on how the First Amendment is applied in other trademark cases in future, the U.S. Supreme Court on Monday threw out a federal prohibition on disparaging trademarks as a constitutional violation in a ruling involving a band called The Slants. From a report: The opinion in Matal v. Tam means that Simon Tam, lead singer of an Asian-American rock band called "The Slants," will be able to trademark the name of his band. It's also relevant for a high-profile case involving the Washington Redskins, who were involved in litigation and at risk of being stripped of their trademark. The court unanimously held that a law on the books holding that a trademark can't "disparage... or bring... into contemp[t] or disrepute" any "persons, living or dead," violates the First Amendment. Tam headed to federal court years ago after he was unable to obtain a trademark. In 2015, the US Court of Appeals for the Federal Circuit ruled in Tam's favor, finding that the so-called "disparagement clause" of trademark law was unconstitutional.

Offensive Trademarks Must Be Allowed, Rules Supreme Court

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  • I've wanted I(heart)269 on my car since California added their little set of additional characters

    • I've wanted I(heart)269 on my car since California added their little set of additional characters

      Emoji license plate characters? Is there a finger?

      • Re: (Score:2, Informative)

        by drinkypoo ( 153816 )

        Off the top of my head, there are a heart, a hand, and a (filled) pentagram. Ah yes, and a plus sign. That one is probably the least used. They only appear on California "kids" plates, which have flowers across the bottom of the character field. California also has California Agriculture plates with a crappy picture of a field, Environmental plates which are just white, Memorial plates which are all patriotic n' shit, Arts Council plates with some palm trees, California 1960s Legacy plates in black and yell

    • A lady had her tribute to tofu repealed after years of use: ILUVTOFU

  • by XxtraLarGe ( 551297 ) on Monday June 19, 2017 @02:08PM (#54648943) Journal
    Don't know if The Slants meant their name as disparaging or not, but I'm glad that the Supreme Court actually took a unanimous stance in favor of free speech. In these days of extreme political correctness/social justice warrior activism, I am surprised it wasn't a 5/4 or 6/3 split. If you think I'm being dramatic, you can look to our English speaking neighbors to the north & east to see how bad it's getting. [dailymail.co.uk]
    • by es330td ( 964170 )
      I think the justices recognized that one cannot have discourse of any kind if speech is prohibited. Once a group can determine what is or is not allowed, the line gets very subjective in a hurry. As things get more contentious, the freedom "to call a spade a spade" must be inviolate.

      (Yes, I chose that reference on purpose, specifically to illustrate the point. The phrase dates to the 1500's and is exactly representative of the speech SJW's would ban simply because they take offense when none is intended
    • by cant_get_a_good_nick ( 172131 ) on Monday June 19, 2017 @02:36PM (#54649205)

      The Slants are Asian Americans. They're aware of the current disparaging connotation and are used it to try to overcome it.

      Planet Money had a great podcast episode on this [npr.org]. One of the biggest parts for the Slants was when RBG said "hey, what if they want to take this word back"

      • This is also the effective way to "take a word back". You not only take it back, you have to wear it proudly and eliminate the negative connotations. It's like when people started being proud about the geek/nerd label.

        "Hey nerd, what's up!" "Happily being a nerd! You?"

        You can't do that if you still police it as offensive though. "Hey Nerd!" "How dare you call me that! Only nerds can call other nerds a nerd!" That isn't taking it back, that's reinforcing the negative power of the word.

    • The government acknowledged the band was using it in a positive way. They maintained, though, that some Asians would find it offensive anyway.

      The SC rejected all such reasons as being relevant. Indeed, it is the offensive things that are most in need of First Amendment protection.

      This case is one of several in recent years rejecting "It is a special program created by Congress to bring financial benefits, and therefore Congress may restrict speech in it as a requirement for citizens to take advantage."


    • by bongey ( 974911 )
      The Slants are all Asian-Americans , so it was a bit of self deprecating humor. Part of the reason some justices ruled the "restriction constituted an impermissible viewpoint-based restriction."
    • And no charges were laid, the police investigated and found nothing worthwhile. http://www.bbc.com/news/uk-england-hampshire-13218522 [bbc.com]

    • Same here.

      Seemingly for ONCE in the last 30-40 years (I'm 50) I see the forces of "it's not the job of the government to protect your hurt feelings" have won one.

      My goodness that's refreshing.

    • In these days of extreme political correctness/social justice warrior activism, I am surprised it wasn't a 5/4 or 6/3 split.

      So it's not the government oppressing you then which means you're basically complaining about people using their free speech wrong. I guess it's your right as an American protected under the first amendment to have a complete irony bypass.

      see how bad it's getting.

      Oh look, a Daily Fail link.

  • Realistically, the anti-disparagement law only lasted this long because Obama's administration wanted it to so they could use it against the Redskins. I don't think there are too many people who care about an Asian-American rock group naming themselves "The Slants" - after all, there's really nothing inherently disparaging about the word "slant" unless you're using it as part of a slur ("slant-eyed").

    This is really a case of the government trying to screw over the little guy because of a broader policy agen

    • Regardless, if it gets to the point where you're not allowed to be disparaging toward yourself - something has gone too far. This trademark wouldn't even be disparaging to non-members of the band, if it were disparaging at all.

    • by BrookHarty ( 9119 ) on Monday June 19, 2017 @02:17PM (#54649033) Homepage Journal

      I think you are correct. If there is a political agenda, the judges normally vote along party line. If there are no politics involved, the courts will default towards the letter of the law.

      People have been redefining acceptable free speech for so many political views, they don't think about the legal impacts. As if only politically correct acceptable speech should be allowed, that's not how free speech works.

    • Realistically, the anti-disparagement law only lasted this long because Obama's administration wanted it to so they could use it against the Redskins.

      The anti-disparagement clause is part of 15 USC 1052(a), and was in the first version of the Lanham Act, passed in 1946, and signed by Truman. It has remained the same over the past 71 years, and Congress, not the President, has the power to change it or keep it.
      Trying to make this about Obama is just stupid, particularly when the first case about this - Pro-Football, Inc. v. Harjo [wikipedia.org] - was decided in 2005 during Bush Jr.'s presidency. And it's even stupider, because that case stemmed from a petition to cancel the Redskins' trademark in 1992, during Clinton's first term. This has been an active dispute for 25 years.

      • by Anonymous Coward on Monday June 19, 2017 @02:45PM (#54649273)

        Actually...while what you said is accurate, you left out a really important and pertinent point. The executive can direct the federal agencies how to enforce the various laws which are used as the basis for administrative rules that dictate how those agencies function. While the case was about The Slants, the more publicized issue was with the Redskins. For that, the last sentence of the AP article on this ruling is insightful:

        "The trademark office for years had raised no concerns about the Redskins, agreeing to register the name in 1967, 1974, 1978 and 1990. But the office canceled the registrations in 2014 after finding the name disparaged Native Americans."

        That sudden reversal was all about a directive coming from the White House. No new law or rule...just the president telling a federal agency how to enforce the rules via laws. Same thing happened in the opposite direction with DOMA. So, yes, this was entirely about Obama and his directives.

      • ... in 1992, during Clinton's first term.

        Clinton wasn't president in 1992.

    • This is really a case of the government trying to screw over the little guy because of a broader policy agenda (namely forcing the Redskins to change their name).

      . . . speaking of screwing over the little guy, "The Slits" https://en.wikipedia.org/wiki/... [wikipedia.org] never had this problem.

      Once again, it's one rule for "The Slits" and another rule for "The Slants" . . .

      • by Holi ( 250190 )
        No evidence that the Slits ever tried to trademark their name in the US. No live or Expired trademark for "The Slits".

        So, maybe same rule.
  • Extra information (Score:5, Informative)

    by olsmeister ( 1488789 ) on Monday June 19, 2017 @02:09PM (#54648951)
    NPR had a episode [npr.org] on their Planet Money podcast about this very case.
  • by RobotRunAmok ( 595286 ) on Monday June 19, 2017 @02:09PM (#54648953)

    You can only take it.

    If enough people are outraged by the Redskins or the Slants, their respective businesses will suffer and they will make a financially informed decision to make a change. If -- as we all know in our hearts -- only a very few loud, whiny SJWs even gave these names a second thought, their respective businesses will continue as normal. Good Job, SCOTUS.

    • by Mike Van Pelt ( 32582 ) on Monday June 19, 2017 @03:51PM (#54649765)

      If enough people are outraged by the Redskins...

      In a conversation that included an actual Native American, she asserted that only "Professional Indians" (her term, spoken with rolling of the eyes) cared. At all.

      • In a conversation that included an actual Native American, she asserted that only "Professional Indians" (her term, spoken with rolling of the eyes) cared. At all

        So? With any sufficiently large group you can find a member of that group who will say just about anything. Do you have any particular reason to believe she was a representative sample?

        • by Straif ( 172656 )

          This has been polled for at least a decade and the numbers never change much. Even during the height of the lawsuit over trademark I believe the highest they could ever get for Natives being offended by the name is 9%. 80% said they wouldn't even be offended if they were personally called Redskin by a non-native. It's just not considered a pejorative by most Natives but that's not good for the professional offence takers so they keep trying to make it something every few years.

          Like most of these campaign

  • by Drethon ( 1445051 ) on Monday June 19, 2017 @02:12PM (#54648979)

    As soon as you do ban them, I'm going to protest that the supreme court has an offensive name (ok, not a trademark but still a name) because their assumption that they are supreme is very offensive to me.

  • There's a legal fiction that SJW types and their fellow-travelers like to promulgate that the First Amendment doesn't cover "hate speech." This decision says that argument is false [battleswarmblog.com]:

    A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” 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. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

    The justices further noted that "speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions."

    Free speech cannot be prohibited, or even restricted, just because SJW types find it "offensive."

  • The Krauts.

    I wonder if that would've also been blocked by the USPTO and had to go to litigation to resolve.

  • That cuban dude who married Lucille McGillicuddy is certainly not a desi, but he went ahead and trade marked Desi Lu. How fair is it?

    (Well, at least so far desi does not have any pejorative connotations, lets see how long it remains so...)

    • You mean Desiderio Alberto Arnaz y de Acha III, who used the name Desi Arnaz on stage, who married Lucille Desiree Ball, whose stage name was Lucille Ball? That "Cuban dude" and that "Lucille McGillicuddy" (the character's maiden name played by Lucille Ball)? Who then formed Desi-Lu studios as a contraction/combination of their first names?

      Is that fair? Of course not. It should have been Lu-Desi, or "ludes" for short. Everyone knows she was a much better actor than he was, and that's even if you remember t

  • Now I can name my band "N*****s With Attitude" and still get a trademark! Oh wait... it's been done, hasn't it?
  • If the government is going to issue trademarks, they have to issue them in a content-neutral way. Otherwise, the government is placed in the position of judging content, and the cases in which they can do that without conflicting with the 1st amendment are rather narrow, such as obscenity, child porn, and community standards for the FCC. Note that "community standard" has never actually put the government in the position of defining offense. I've actually heard "fuck" on my local community radio station